
AMERICAN HISTORICAL ASSOCIATION. 



;tudies in the history of the federal 
cosvention of 1787. 



JOHN FRANKLIN JAMESON, 

PROFESSOR, univp:rsity of <;hk;a«o. 



(From the Annual Report of the American Historical Association for 1902, 
Vol. I, pages 87-167.) 



WASHINGTON: 

GOVERNMENT PRINTING OFFICE. 
1903. 



AMERICAN HISTORICAL ASSOCIATION. 



STUDIES IN THE HISTORY OF THE FEDERAL 

CONVENTION OF 1787. 



JOHN FRANKLIN JAMESON, 

PROFESSOR, UNIVERSITY OF CHICAGO. 



(From the Annual Report of the American Historical Association for 1902, 
Vol. I, pages 87-167.) 



WASHINGTON: 

GOVEENMENT PRINTING OFFICE. 
1903. 



■;^\<\A^^ 



J0Mr'04 



IV —STUDIES IN THE HISTORY OF THE FEDERAL 
CONVENTION OF 1787. 



By JOHN FRANKLIN JAMESON, 

Profi'snor, T/nivrrsit!/ of Cliirafjo. 



87 



STUDIES IN THE HISTORY OF THE FEDERAL CONVENTION OF 

1787. 



Bv Prof. John Franklin Jameson. 



Of the papers here printed, the first was read at the Phila- 
delphia meeting- of the Association. The rest owe their pres- 
ence here to the merciful institution known as "leave to 
print." Most of them are merely essays in " the lower criti- 
cism." But need one apologize for textual criticism in such 
a case? Minute and technical studies respecting transactions 
intrinsicall}!' unimportant msij justly be disapproved. But 
those persons who agree with Darwin's declaration that the 
Anglo-Saxon migration across the Atlantic may ver}^ likely 
be the most important event in human history will think that 
the minutiae of the Philadelphia Convention are as well de- 
serving of elaboration as those of the councils of Sardica and 
Chalcedon — not to say Nicasa and Trent. An age which every 
year prints some scores of pages of textual criticism of the 
lives of Merovingian saints can surely devote a few to the 
immediate origins of the American Constitution, though it be 
but to " settle hotPs business." The following- is a list of the 
papers comprising the series: 

J. Letters from the Federal Convention. 
II. Letters not heretofore printed. 

III. List of letters in print. 

IV. The text of the Virginia plan. 
V. The text of the Pinckney plan. 

VI. The text of the New Jersey plan. 
VII. The text of Hamilton's plan. 
VIII. The Wilson drafts for the committee of detail. 
IX. Members who did not sign. 
X. The action of the States. 
XL Journals and debates of the State conventions. 

Of the above papers, those numbered II and III seem to 

89 



90 AMEKICAN HISTORICAL ASSOCIATION. 

])c necessary adjuncts of the tirst; No. VIII presents an im- 
portant new text; No. IX is intended to meet an apparent 
though small need. Of X and XI, which are bibliograph- 
ical in their character, no more is thought than that thej may 
possil)ly help some weary brother. I venture to think No. V 
the most important. 



I. T.ETTERS FROM THE FEDERAL CONVENTION. 

There is certainly no lack of information concerning the 
doings of the great Federal Convention which met in this cit}' 
one liundred and fifteen years ago. The proceedings of each 
day may be followed in the journal of the Convention and in 
the invaluable record of its debates kept by Madison — not the 
least of the many public services for which we are indebted 
to that methodical little man. Yet I think it not hopeless to 
attempt to derive some further illustrations of its histor}^ from 
the letters written by various of the members during the con- 
tinuance of its sessions. Such as they are, the}" form a record 
no less authentic than the official journal, and even more strictly 
contemporaneous than Madison's notes in the form in which 
the latter have been presented to us. Moreover, their num- 
ber is not small. About eighty have been printed, in whole 
or in part or in summar}"/' and through the kindness of their 
owners 1 have been permitted to have copies of a considerable 
luimber which still remain in manuscript. It is true that 
many, if not most of them, are insignificant for the present 
purpose. It is also true that their contents are vasth^ less 
instructive than Ihej would doubtless have been if the Con 
vention had not, on May 29, adopted as one of its formal rules 
the injunction "that nothing spoken in the House be printed 
or otherwise published or communicated without leave.'"' 
But it should be remembered that a portion, though a small 
portion, of the transactions of the Convention preceded this 
decree. In the second place, not every member, though to 
be sure nearly all, observed the rule with the utmost strict- 
ness. Gilman of New Hampshire, excusable perhaps as hav- 
ing arrived very late and but a few days before the elate of the 



« A list of the printed letters forms No. Ill of this series of studies. In the footnotes to 
this first paper hitters are, for the sake of brevity, referred to by their numbers on that list. 
''Documentary History of the Constitution, I, 54. 



THE FEDERAL CONVENTIOlSr OP 1787. 91 

letter quoted, writes to his cousin Joseph, with an astonish- 
ing- misconception of a very stringent rule — 

As secrecy is not otherwise enjoined than as prudence may dictate to 
each individual, in a letter to my brother John, of the 28th instant, I 
gave him (for the satisfaction of two or three who will not make it public) 
a hint respecting the general principles of the plan of National Government 
that will probably be handed out — which will not be submitted to the leg- 
islatures, but after the approbation of Congress to an assembly or assem- 
blies of representatives recommended by the several legislatures, to be 
expressly chosen by the people to consider and decide thereon. « 

(The letter to John Taylor Gihnan seems not to be extant.) 
Other members felt the obligation of the rule to be somewhat re- 
laxed during- the later portion of the Convention's proceedings, 
when the great questions had been settled, and communicated to 
their anxious friends some notion of the stage which had been 
reached in the transactions, and even in a few cases some hints 
of the contents of the instrument which they were framing. 
Even the cautious and punctilious Madison, -writing on the 6th 
of September, feels free to describe the Constitution in out- 
line to his correspondent, because that correspondent is Jeffer- 
son in Paris and the Convention is evidently within a few days 
of adjournment.* Finall3^ it is worth noting that a certain 
number of the letters are addressed by members remaining in 
Philadelphia to members who have gone home, or vice versa, 
and in these we lind, as we might expect, a greater freedom 
of utterance.'' A notable example is a most striking letter of 
Washington to Hamilton, written at the crisis of the Conven- 
tion.'^ But of this later. 

Naturally it is the outward aspects of the Convention which 
are most largely illustrated by these letters. Some of them 
exhibit the slowness of the members in arriving at Philadel- 
phia — the tedious dela3^s in securing a quorum.'' Others relate 
the comings and goings of such as did not remain throughout 
the entire four months.-^ It would in most cases be possible 
by their use to explain the absence of those members whose 
names are not signed to the instrument, yet who are not 

"No. 54. 

&No. 75. 

c Letters of members to members are: Nos. G, 8, 19, 24, 32, 39, 49, 55, G3, 67, G9, 70, 77. 

rfNo. 39. 

«Nos. 1, 4, 5, G, 9-13, 54. No. 17 gives a list of members. 

/Nos. 24, 27, 37, 42, 43, 4«, 49, 50, 55, 5G, 02, 63, G6, 68. 



92 AMEEICAJSr HISTORICAL ASSOCIATION. 

named as among those who refused their signatures/' The 
most interesting of the letters of the absent is that in which 
Hamilton explains to Rufus King that he had written to his 
recalcitrant colleagues informing them that if either of them 
would come down he would accompanj^ him to New York. 
''So much,*'' he says, "for the sake of propriety and public 
opinion." ''In the meantime," he adds, "if any material 
alteration should happen to be made in the plan now before 
the Convention, I will be obliged to you for a communication 
of it. 1 will also be obliged to you to let me know when 3'our 
conclusion is at hand, for I would choose to be present at that 
time,""^ Later he writes inquiring into the truth of the rumor, 
current in New York, that some late changes in the scheme 
have taken place "which give it a higher tone." "^ Interest- 
ing also are those letters which show that one of Major Pierce's 
reasons for absence was the expectation of fighting a duel, in 
which Hamilton was second to his adversarj^'' 

Some of the earlier letters show the anxieties and difficulties 
of the members as to quarters.^ Some of them went into 
lodgings, some to taverns. Washington was entertained at 
the house of Robert Morris. Mason put up at the old Indian 
Queen, in Fourth street, above Chestnut, where, says he — 

we are very well accommodated, have a j^ood room to ourselves, and arc^ 
charged only twenty-five Pennsylvania currency per day, including our 
servants and horses, exclusive of club in liquors and extra charges; so that 
I hope I shall be able to defray my expenses with my public allowance, 
and more than that I do not wish./ 

As time went on, however, and the proceedings bade fair to 
})e prolonged far beyond the time originally expected, not a 
few of the members found their public allowance far from 
sufficient, and letters to the executives of the States asking 
for remittances to meet unexpected expenses are not infre- 
quent.^ They are not themselves dissatisfied that the work is 

"This has been attempted, by means of these letters and other sources of information, 
in No. IX of this series of papers, pp. 157-160, infra. 

(>No. 63. 

••No. 69. 

dNos. 48, 49, 50. 

e Nos. 4, 6, 8. 

/No. 4. That Pierce lodged at this same hostelry appears from his statement in a 
memorandum printed in the American Historical Review, III, 328. Madison and Charles 
Pinckney lodged in the same house with each other (Madison's Letters, IV, 203); so 
probably did Kead and Dickinson (No. 8). 

!/Nos. 18, 22, 23, 41, 51, 53. 



THE FEDERAL CONVENTION OF 1787. 93 

being done deliberately/' but Madison twice writes Jefferson 
that the public mind is very impatient for the event. ^ Early 
in eTuly there is a prediction that the delegates will be 
detained till the middle of August.'' Before the end of July 
the 1st of September is talked of as the time of release. ^ By 
the middle of August a continuance till the middle of Septem- 
ber begins to be foreseen.'' 

Something of the social life of the members transpires in the 
letters/ though not so much as in Washington's diary. ^ The 
daily dinners and tea-drinkings which that much-enduring man 
tranquilly records wore desperately upon the country -loving 
and less patient spirit of George Mason. He had been but 
ten days in Philadelphia when he wrote: 

I begin to grow heartily tired of the etiquette and nonsense so fashion- 
able in this city. It would take nie some months to make myself master 
of them, and that it should require months to learn what is not worth 
remembering as many minutes is to me so discouraging a circumstance as 
determines me to give myself no manner of trouble about them.'''' 

It is not illegitimate to derive a little anmsement from the 
comparison of two letters of Franklin.* The one (corrobo- 
rated by Washington's diary) shows that he entertained the 
members at dinner on the 16th of May, two daj^s after the 
date on which the Convention should have begun its sessions. 
The other, in which he is describing to his sister the recent 
enlargements of his house, tells her that his new dining-room 
enables him to have a dinner-party of twenty-four. As presi- 
dent of Pennsjdvania, the sagacious doctor must dine the 
delegates; but, born not in vain in Yankee land, he placed 
his invitation early, when not half the delegates had arrived. 
It was not his fault that they were so slow in assembling. As 
nearly as it can be calculated, there must have been just about 

" Nos. 23, 61. 

t> Nos. 44, 75. 

<■■ No. 35. 

d Nos. 46, 51. 

e Nos. 58, 59, 62, 65. 

f Nos. 2, 11, 14, 28. 

(/Washington's diary for the period of the Convention exists in two forms. The 
Library of Congress possesses a volume, which, according to its Calendar of Washington 
Manuscripts (pp. 65, 66), "is probably the original notebook from which the amplified 
diary, now in the Department of State, was written at a later period." Its text for the 
period in question was printed, with omissions, in the Pennsylvania Magazine of History, 
XI, 296-308. From the diary in its finished form, preseni'ed at the Department of State, 
extracts have been printed by Sparks (IX, 538-541) and by Ford (XI, 140-155). 

h No. 11. 

tNos. 2, 14. 



94 AMERICAN HISTORICAL ASSOCIATION. 

twenty-four members in town on the 16th; two daj^s later 
they would have been, in a proper sense, one too many for 
him. 

But much more important things than these are to be found 
in the letters. Beginning with the earliest letters, we catch 
glimpses of those private and preparatory consultations of 
which the official records tell us nothing. "The Virginia 
deputies (who are all here)," says Mason, writing in the da3's 
when a quorum had not yet come together, "meet and confer 
together two or three hours ever}^ day, in order to form a 
proper correspondence of sentiments; and for form's sake, to 
see what new deputies are arrived, and to grow into some 
acquaintance with each other, we [that is, the Convention] 
regularl}^ meet every day at 3 o'clock."" The ordinary hours 
of meeting, by the way, are stated b}^ one member as being 
from 10 o'clock till ■!.* Franklin writes to his sister, imme- 
diately after the adjournment of the Convention: 

I attended the business of it live hours in every day from the beginning, 
which is something more than four months. You may judge from thence 
that my health continues; some tell me I look better, and they suppose 
the daily exercise of going and returning from the statehouse has done me 
good. ^ 

Washington in his diarj^ speaks of ' ' not less than live, for 
a large part of the time six, and sometimes seven hours, 
sitting every da3^" 

But to return to the earliest daj^s of the Convention. It 
will be remembered that soon after the Randolph or Virginia 
plan was presented Charles Pinckney, of South Carolina, pre- 
sented a plan, and also that it has whollj^ disappeared,^ for 
that which is printed in the journal under his name is demon- 
strabl}' something quite different. Now, a lettei' written in 
those early daj^s before a quorum had been obtained gives an 

a No. 4. 

bNo. 62. The journal, however, -shows these hours as definitely fixed during only the 
period from August 18 to August 24. See No. 67. After that the hours were from 10 to 3. 
From May 28 to .Tune 2 the hour of meeting was 10 o'clock, from June 4 to August 18 
11 o'clock, but without .specified hour for adjournment. Documentary History, I, 132, 
1.34; III, 559, G13, et passim. 

I- No. 84. Watson, Annals, ed. 1891, I, 402, says that the municipal authorities covered 
the street pavement outside the statehouse with earth to silence the rattling of wheels 
during the time of the Convention. In the Documentary History, 1,280, is ])rinted a 
communication from the Library Company of Philadelphia, extending tlie i)rivilege of 
drawing books to the members of the Convention during its continuance. 

f'So it was universally supposed at the time when this paper was read; but see i)p. 
128,132, infra, and the American Historical Review, VIII, 509-511. 



THE FEDERAL CONVENTION OF 178Y. 95 

outline of a plan which the writer of the letter had seen and 
. copied, and which, though he does not give the author's name, 
can be demonstrated to have been Pinckne^^'s, which accord- 
ingly was in existence as early as May 20/' 

The events of the first days' proceedings of the Convention 
are not related in a manner different from that of the journal; 
but the letters show much of the spirit which the delegates 
manifested at the beginning of their labors, of the various 
expectations which they and others formed concerning their 
work, and of the prevalent notions as to what it should be.* 
If George Mason's estimate was correct, the prevailing opinion 
at the beginning of the sessions was in favor of a total reno- 
vation of the existing articles and a government at least as 
strongl}^ centralized as that which was outlined in the Vir- 
ginia resolutions soon after presented/ But it should be said 
that his estimate was formed at a time when the large States 
were more fully represented in Philadelphia than the small. 
The spirit in which the work was begun was obviously marked 
by the expectation and the desire of harmony. Many passages 
declare, forcibly and even eloquently, the writers' sense of the 
magnitude of the occasion and of the critical situation in 
which the United States stood. ^^ Pierce in his notes, published 
a few 3^ears ago, speaks of himself as having occupied "a seat 
in the wisest council in the world." ^ Johnson, of Connecticut, 
a graver man, tells his son that the assembly includes many 
of the ablest men in America,-^' while Kobert Morris writes to 
his sons in Germany that they ought to pray for a successful 
issue to the Convention's labors, "as the result is to be a form 
of government under which you are to live, and in the admin- 
istration of which you may probably hereafter have a share, 
provided you qualify yourselves b}^ application to 3^our 
studies,"^ and one of the North Carolina delegates takes satis- 
faction in believing that they have contributed to the happi- 
ness of millions. ^^ 

The situation of the General Government [wrote Washington], if it can 
be called a government, is shaken to its foundation and liable to be over- 
turned by every blast. In a word, it is at an end, and vinless a remedy is 
soon applied anarchy and confusion will inevitably ensue. * 

a No. 6. See pp. 119, 120, infra. /No. 29. 

l> Nos. 4, 5, 9, 15, 16, 18. g No. 28. 

•t'No. 5. ?iNo.66. 

dNos. 10, 15, 16, 21, 28, 60, 66. « No. 15. 
e American Historical Review, III, 334. 



96 AMERICAN HISTORICAL ASSOCIATION. 

No member of the Convention was less inclined to rhetor- 
ical exaggeration than George Mason; none surpassed him in 
the gift of a terse and masculine eloquence. 

America [he Avrites to his son] has certainly upon this occasion drawn 
forth her first characters. There are upon this Convention many gentle- 
men of the most respectable abilities and, so far as I can discover, of the 
purest intentions. The eyes of the United States are turned upon this 
assembly and their expectations raised to a very anxious degree. May 
God grant we may be able to gratify them by establishing a wise and just 
government. For my own part I never before felt myself in such a situa- 
tion, and declare I would not, upon pecuniary motives, serve in this Con- 
vention for a thousand pounds per day. The revolt from Great Britain 
and the formations of our new governments at that time were nothing com- 
pared to the great business now before us. There was then a certain degree 
of enthusiasm which inspired and supported the mind; but to view 
through the calm, sedate medium of reason the influence which the 
establishment now proposed may have upon the happiness or miserj^ of 
millions yet unborn is an object of such magnitude as absorbs, and in a 
measure suspends, the operations of the human understanding. « 

It may naturally be supposed that the hopefulness with 
which the Convention began its work was overclouded by the 
discordant debates -which marked the last days of June and 
the first days of Jul^'^, days in which it long seemed impossible 
to bring into any agreement the conflicting desires of the large 
and the small States, Several extant letters show that this 
was plainly felt to be the great crisis of the Convention, in 
which the danger of breaking up without result was immi- 
nent.'^ Most strikingl}^ is this shown b}^ the letter of Wash- 
ington to Hamilton already alluded to. 

When I refer you [he says] to the state of the counsels which pre- 
vailed at the period you left the city [some ten days before] and add that 
they are now, if possible, in a worse train than ever, you will find but lit- 
tle ground on which the hope of a good establishment can be formed. In 
a word, I almost despair of seeing a favorable issue to the proceedings of 
our Convention, and do therefore repent having had any agency in the 
business. * * * I am sorry you went away. I wish you were back. 
The crisis is equally important and alarming, and no opposition, under 
such circumstances, should discourage exertions till the signature is 
offered. <' 

As has already been said, in the later months of the Con- 
vention one finds in the correspondence occasional disclosures 
as to the stage reached in the proceedings. But these add 
nothing to what is in the journal, except the evidences of 
relief when, the main outlines of the Constitution having 

"No. Ki. ''Nos. 30-33, 39. <-Nu. 39. 



THE FEDERAL CONVENTION OF 1787. 97 

been completed, it had been handed over to the Committee of 
Detail/' More interesting are the letters in which hints re- 
specting the Constitution itself are convej^ed. 

It is not probable [writes one of the North Carolina delegates, August 
12] that the United States will in future be so ideal as to risk their happi- 
ness upon the unanimity of the whole, and thereby put it in the power of 
one or two States to defeat the most salutary propositions and prevent the 
Union from rising out of that contemptible situation to which it is at 
present reduced. ^ 

Gilman's disclosures as to the process of ratitication have 
already been mentioned. Madison, after outlining to Jeffer- 
son the powers proposed to be conferred on the General Gov- 
ernment, remarks: 

The extent of them may perhaps surprise you. I hazard an opinion, 
nevertheless, that the plan, sliould it be adopted, will neither effectually 
answer its national object nor i^revent the local mischiefs which every- 
where excite disgust against the State governments. '' 

As the Convention draws to its close several members, look- 
ing forward to the action of Congress upon it, express to the 
authorities of their States an anxiety that the latter shall main- 
tain an adequate representation in Congress, in order that that 
body may act promptly, and get the Constitution before the 
State legislatures at their autumnal sessions.'^ One of the last 
letters is one in which IJickinson, writing to Read, authorizes 
the latter to sign his name to the Constitution, as he wishes 
to leave a few days before the close. ^ I am informed by Mr. 
Andrew H. Allen, the official custodian of the original docu- 
ment, that Dickinson's signature to it is undoubtedly written 
in Read's hand. Finally comes the brief note in which Maj. 
William Jackson, secretary of the Convention, informs Gen- 
eral Washington that — 

Major Jackson, after burning all loose scraps of paper which belong to 
the Convention, will this evening wait upon tlie General with the journals 
and other papers which their vote directs to be delivered to his excellency 
Monday evening./ 

«Nos. 34, 46, 56, 58, 65, 68. 

b No. 58. 

cNo. 75. 

dNos. 34, 62, 65. 

e No. 77. 

/No. 78. From a conversation with Jackson in 1818, which Jolm Quincy Adams 
records, Memoirs, IV, 175, it appears that Jackson did preserve extensive minutes of the 
debates of the Convention. Possibly these are still extant; see Appleton's Cye. Biog., 
s. v., but also Pa. Mag. Hist., II, 353. 

H. Doc. 461, pt 1 7 



98 AMERICAN HISTORICAL ASSOCIATION. 

A group of letters which in strictness falls outside the pres- 
ent subject, yet which presents much the same sort of interest, 
is that of the letters written by members in the next day or 
two after the adjournment. General Washington transmits 
a copy of the Constitution to Lafayette, with a brief note: 

It is the result of four months' deliberation [he says]. It is now a child 
of fortune, to be fostered by some and buffeted by others. What will be 
the general opinion or the reception of it is not for me to decide, nor shall 
I say anything for or against it. If it be good, I suppose it will work its 
way; if bad, it will recoil on the framers.« 

Randolph sends a copy to Beverley Randolph, the lieutenant- 
governor, who had been taking his place as head of the execu- 
tive of Virginia during his absence; and adds, in a sentence 
characteristic of his tortuous mind: 

Altho' the names of Col. Mason and myself are not subscribed, it is not 
therefore to be concluded that we are opposed to its adoption. Our rea- 
sons for not subscribing will be better explained at large, and on a personal 
interview, than by letter. & 

The members from North Carolina are careful to explain 
promptly to their governor how completel}^ the interests, and 
especially the pecuniar}^ interests, of North Carolina have been 
safeguarded by the great compromises and by some of the 
minor provisions of the proposed Constitution.^ The series 
Htly ends with a letter of Madison to Edmund Pendleton, in 
which he sums up in a sentence the history of the Convention: 

The double object of blending a proper stability and energy in the Gov- 
ernment with the essential chai'acters of Ihe repul)lican form, and of trac- 
ing a proper line of demarcation between tlie national and State authorities, 
was necessarily found to be as difficult as it Avas desirable, and to admit of 
an infinite diversity concerning the means among those who were unani- 
mously agreed concerning the end.'^ 

II. LETTEES NOT HERETOFORE PRINTED. 

1. David Brearley to Jonathan Dayton {extract). ^ 

Philadelphia, 9"' June 1787. 
Dear Sir: * * * We have been in a Committee of the 
Whole for some time, and have under consideration a number 



" No. 83. 
''No. 82. 
cNo. 79. 
rtNo. 85. 

eFrom a copy kindly furnished by Mr. Simon Gratz, of Pliiladelphia, who possesses 
the original manuscript. 



THE FEDEEAL CONVENTION OP 1181. 99 

of very miportant propositions, none of which, however, have 
as yet been reported, M}'^ colleagues, as well as myself, are 
very desirous that you should join us immediately.'* The 
importance of the business really demands it. 

^. David Brearley to William Pater son. * 

Philadelphia 'Bl Axig. 1787. 

Dear Sir: 1 was in hopes after the Committee had reported, 
that we should have been able to have published [? finished] 
by the first of September, at present I have no prospect of 
our getting through before the latter end of that month. 
Every article is again argued over, with as much earnestness 
and obstinac}^ as before it was committed. We have lately 
made a rule to meet at ten and sit 'til four, which is punctually 
complied with. Cannot you come down and assist us, — we 
have many reasons for desiring this; our duty, in the manner 
we now sit, is quite too hard for three,'' but a much stronger 
reason is, that we actually stand in need of your abilities. 

I am, most respectfully, dear sir, your obedient humble 

servant 

David Brearley. 

3. Extract from the Pennsylvania Journal.'^ 

We are informed, that many letters have been written to 
the members of the foederal convention from different quar- 
ters, respecting the reports idly circulating, that it is intended 
to establish a monarchical government, to send for the bishop 
of Osnaburgh, &c., &c. — to which it has been uniformly an- 
swered, tho' we cannot, affirmatively, tell j^ou what we are 
doing, we can, negatively, tell you what we are not doing — 
we never once thought of a king. 

o Dayton took his seat June 21. Brearley, Houston, Paterson, and Livingston were 
already present at the time when the letter was written. 

b From a copy found among the MSS. of George Bancroft at the Lenox Library, "Pat- 
erson MSS.," p. 603. There seems to be no evidence of Paterson's presence from July 23 
to the time of signing the Constitution. Documentary History, III, 405. 

cl. e., Brearley, Livingston, and Dayton. Documentary History, I, 140, 144; III, 661, 
574, 596. 

d Of August 22, 1787. Mentioned in Curtis, History of the Formation of the Constitu- 
tion, II, 495, and Constitutional History, I, 626. I have procured a copy of it and inserted 
it here mainly that it may be seen not to be an individual letter, though its phrases are 
taken from one written two days before by Governor Martin, letter No. 65. Upon its sub- 
ject, see Humphreys to Hamilton, in the latter's works, ed. Hamilton, I, 442; Hamilton's 
History of the Republic, III, 331: J. C. Hamilton, Life of A. Hamilton, II, 535. 

L.ofC. 



100 AMERICAN HISTORICAL ASSOCIATION. 

Jf,. Nathanld Gorham to Caleb Strong^'- 

Philadelphia A ruf 29 
My Dear Sir 1 ret-'^ your favour from N York and was 
pleased to find that ycni had got on so well, inclosed is a 
Letter that came to hand for you. We haye now under 
consideration the 18"" Article which is that the United States 
shall guarantee, &c. &c.'' 

I am in hopes we shall be done in about 20 days. There 
are several things referred which will take some time. 
Remember me to our friend Sedgwick. 

o. Jondthan Dai/ton to Gen. Ellas Dayton {extract).'^ 

Philadelphia, Sej)i. 9, 1787. 
Dear Sir: * * * We have happil}^ so far finished our 
business, as to be employed in giving it its last polish and 
preparing it for the pu1)lic inspection. This, 1 conclude, may 
be done in three or four days, at which time the public curi- 
osity and our desire of returning to our respective homes, will 
equall}^ be gratified. 

III. LIST OF LETTERS IN PRINT. 

The following is intended as a list of letters to be found in 
print, written b}^ members of the Philadelphia convention 
during its sessions, w^hether the same are perceived to have 
any importance to history or not. Letters printed onl}^ in 
extract or in summary are included, and also some letters 
of importance written just after the adjournment. On the 
other hand, letters written by members before they arrived in 
Philadelphia, though after the opening of the convention, are 
not included: 

1. May 15. Madison to Jefferson. Letters and other Writings, I, 328. 

2. May 18. Franklin to Thomas Jordan. Works, ed. Sparks, X, :W4; 

ed. Bigelow, IX, 386. 

3. May 18. Franklin to George Whatley. Works, ed. Sparks, X, 306; 

ed. Bigelow, IX, 388. 

ttThe original of this letter is possessed by the Historical and Natural History Society 
of South Natick, Mass. A copy was kindly furnished by Gustavus Smith, esq., president 
of the society. 

'' Consideration of article 18 of the report of the committee of detail was not begun, 
according totho journal, until the session of August 30 was well advanced. Documentary 
History, I, 1G9. 

('From a copy kindly scut by Mr. SiuKiu (iratz, owner of tlie original. 



THE FEDERAL CONVENTION OF 1787. 101 

4. May 20. Mason to George Mason, jr. Miss Rowland's Mason, II, 100; 

Hart, Contemporaries, III, 203; extract in Bancroft, Con- 
stitution, II, 421. 

5. May 21. Mason to Arthur Lee. Lee's Arthur Lee, II, 319; Rowland, 

II, 102. 

6. May 21. Read to John Dickinson. Read's George Read, p. 443. 

7. May 24. Randolph to Beverley Randolph. Calendar of Virginia 

State Papers, IV, 289. 

8. May 25. Read to John Dickinson. Brotherhead, Book of the Signers, 

1861, p. 63. 

9. May 27. Madison to Edmund Pendleton. Letters, I, 328. 

10. May 27. Madison to James Madison, sr. Letters, I, 329. 

11. May 27. Mason to George Mason, jr. Rowland, II, 103. 

12. May 27. Randolph to Beverley Randolph. Calendar of Virginia 

State Papers, IV, 290. 

13. May 30. Davie to James Iredell. McRee, Life of Iredell, II, 161. 

14. May 30. Franklin to Mrs. Jane Mecom. Works, ed. Bigelow, IX, 

392. 

15. May 30. Washington to Jefferson. Sparks, IX, 254; -Ford, XI, 156. 

16. June 1. Mason to George Mason, jr. Rowland, II, 128; extract in 

Bancroft, II, 424. 

17. June 6. Madison to Jefferson. Letters, I, 330. 

18. June 6. Randolph to Beverley Randolph. Calendar of Virginia State 

Papers, IV, 293. 

19. June 9. Brearley to Jonathan Dayton. See p. 98, supra. 

20. June 10. Madison to Monroe. Extract in "Washington-Madison Pa- 

pers" (McGuire sale catalogue), p. 129. 

21. June 11. Gerry to Monroe. Extract in Bancroft, II, 428. 

22. June 12. Spaight to Governor Caswell. N. C. Records, XX, 723. 

23. June 14. Four N. C. delegates to Caswell. N. C. Records, XX, 723. 

24. June 16. Wythe to Edmund Randolph. From Williamsburg. Sum- 

marized in the Calendar of the Emmet Collection, No. 
9542. 

25. June 19. Davie to Caswell. N. C. Records, XX, 725. 

26. June 19. Davie to James Iredell. McRee' s Iredell, II, 161. 

27. June 21. Randolph to Beverley Randolph. Calendar of Virginia State 

Papers, IV, 298. 

28. June 25. Robert Morris to his sons. Extract in Pennsylvania Maga- 

zine of History, II, 170. 

29. June 27. Johnson to his son. Extract in Bancroft, II, 430. 

30. June 30. Mason to Beverley Randolph. Rowland, II, 131; Calendar 

of Virginia State Papers, IV, 310. 

31. July 1. Washington to David Stuart. Sparks, IX, 257; Ford, XI, 

159. 

32. July 3. Hamilton to Washington. From New York. J. 0. Hamil- 

ton, Life of A. Hamilton, II, 522; Works, ed. Hamilton, I, 
435; ed. Lodge, VIII, 175; Hamilton's Republic, III, 317; 
Sparks, Letters to Washington, IV, 172; Hunt, Madison, 

ni, 351. 



102 AMERICAN HISTOEICAL ASSOCIATION. 

33. July 3. Spaight to Iredell. McRee, Iredell, II, 162. 

34. July 7. Four North Carolina delegates to Caswell. N. C. Eecords, 

XX, 733. 

35. July 8. Williamson to Iredell. McRee, II, 163. 

36. July 9. Washington to Hector St. John de Crevecoeur. Sparks, IX, 

259. 

37. July 10. Blount to Caswell. N. C. Records, XX, 734. 

38. July 10. Blount to W^iUiam Constable. N. C. Records, XX, 734. 

39. July 10. Washington to Hamilton. Sparks, IX, 260; Ford, XI, 162; 

J. C. Hamilton, Life of A. Hamilton, II, 527; Hamilton's 
Works, ed. Hamilton, I, 437; Hamilton, Republic, 111,322. 

40. July 12. Blount to Caswell. N. C. Records, XX, 739. 

41. July 12. Randolph to Beverley Randolph. Calendar of Virginia State 

Papers, IV, 315. 

42. July 16. Wythe to Beverley Randolph. From Williamsburg. Broth- 

erhead. Centennial Book of the Signers, 1876, p. 257. 

43. July 17. Davie to Iredell. McRee, II, 165. 

44. July 18. Madison to Jefferson. Letters, I, 333. 

45. July 19. Washington to R. H. Lee. Lee's R. H. Lee, II, 35; Sparks, 

IX, 261; Ford, XI, 163. 

46. July 22. Williamson to Iredell. McRee, II, 167. 

47. July 23. Sherman to Timothy Pickering. Summarized in 6 Mass. Hist. 

Soc. Coll., VIII, 451. 
48 Hamilton to . Works, ed. Hamilton, I, 437 ; ed. Lodge, 

VIII, 176. 
49 Hamilton to William Pierce. Writings, ed. Lodge, VIII, 177. 

50. July 26. Hamilton to Auldjo. Works, ed. Hamilton, I, 439; ed. 

Lodge, VIII, 178. 

51. July 27. Alexander Martin to Caswell. N. C. Records, XX, 753. 

52. July 28. Madison to James Madison, sr. Letters, I, 335. 

53. July 30. Strong to Alexander Hodgdon, treasurer of Massachusetts. 

Summarized in the Calendar of the Emmet Collection, No. 
545. 

54. July 31. Oilman to Joseph Oilman. N. H. State Papers, XXI, 835. 

55. Aug. 5. McClurg to Madison. From Richmond. Summarized in 

Bulletin of the Bureau of Rolls and Library, IV, 487. 

56. Aug. 6. Davie to Iredell. McRee, II, 167. 

57. Aug. 12. Madison to James Madison, sr. Summarized in Bulletin of 

the Bureau of Rolls and Library, IV, 68. 

58. Aug. 12. Spaight to Iredell. McRee, II, 168. 

59. Aug. 13. Gerry to Gen. James Warren. Austin, Life of Gerry, II, 36. 

60. Aug. 15. Washington to Lafayette. Sparks, IX, 262; extract in Ford, 

XI, 162. 

61. Aug. 19. Washington to Knox. Sparks, IX, 264. 

62. Aug. 20. Blount to Caswell. N. C. Records, XX, 764. 

63. Aug. 20. Hamilton to Rufus King. J. C. Hamilton, Life of A. Ham- 

ilton, II, 533; Works, ed. Hamilton, I, 439; ed. Lodge, 
VII, 178; Hamilton, Republic, III, 329; King's King, 
I, 258. 



70. 


Aug. 


29. 


71. 


Sept. 


2. 


72. 


Sept. 


3. 


73. 


Sept. 


3. 


74. 


Sept. 


4. 


75. 


Sept. 


6, 


76. 


Sept. 


9. 


77. 


Sept. 


15. 


78. 


Sept. 


17. 



THE FEDERAL CONVENTION OF 1787. 103 

64. Aug. 20. Hamilton to Jeremiah Wadsworth. Works, ed. Hamilton, 

I, 440; ed. Lodge, VIII, 179. 

65. Aug. 20. Alexander Martin to Caswell. N. C. Records, XX, 763. 

66. Aug. 20. Williamson to Caswell. N. C. Records, XX, 765. 

67. Aug. 21. Brearley to William Paterson. See p. 99, supra. 

68. Aug. 23. Davie to Caswell. From Halifax, N. C. N. C. Records, 

XX, 766. 

69. Aug. 28. Hamilton to Rufus King. J. C. Hamilton, Life of A. Ham- 

ilton, II, 533; Works, ed. Hamilton, I, 441; ed. Lodge, 
VIII, 179; Hamilton, Republic, III, 329; King's King, I, 
258. 

Gorham to Caleb Strong. See p. 100, supra. 

Randolph to Beverley Randolph. Calendar of Virginia State 
Papers, IV, 338. 

Gilman to John Sullivan. N. H. State Papers, XVIII, 790. 

Pierce to Don Diego de Gardoqui. From New York. New 
Jersey Journal, November 28, 1787; Carey's American 
Museum, II, 583. 

Madison to James Madison, sr. Letters, I, 336. 

Madison to Jefferson. Letters, I, 337. 

Dayton to Gen. Elias Dayton. See p. 100, supra. 

Dickinson to George Read. Read's Read, p. 456. 

Maj. William Jackson, secretary of the Convention, to Wash- 
ington. Bancroft, II, 441. 

79. Sept. 18. Blount, Spaight, and Williamson to Caswell. N. C. Records, 

. XX, 777. 

80. Sept. 18. Gilman to Joseph Gilman. Arthur Gilman, The Gilman 

Family, p. 109; G. Hunt, Fragments of Revolutionary 
History, p. 156. 

81. Sept. 18. Gilman to John Sullivan. N. H. State Papers, XXI, 836. 

82. Sept. 18. Randolph to Beverley Randolph. Calendar of Virginia State 

Papers, IV, 343. 

83. Sept. 18. Washington to Lafayette. Sparks, IX, 265. 

84. Sept. 20. Franklin to Mrs. Jane Mecom. Writings, ed. Bigelow, IX, 

406. 

85. Sept. 20. Madison to Edmund Pendleton. Letters, I, 340. 

86. Sept. 28. Pierce to St. George Tucker. American Historical Review, 

III, 313. 

IV. THE TEXT OF THE VIRGINIA PLAN. 

The Virginia or Kandolph plan for the amendment of the 
Articles of Confederation, presented to the Federal Conven- 
tion on May 29, is commonly held to be a familiar and certain 
docmnent. Yet there exist four different texts of these reso- 
lutions, and, what is more remarkable, it can (in the view of 
the present writer) be proved that no one of the four is the 
exact text of the original series which Governor Randolph laid 



104 AMERICAN HISTORICAL ASSOCIATION. 

before the Convention on Ma}^ 29, 17ST. As doubts, to say the 
least, attend also the text of the other plans presented, it ma}- 
be well before proceeding- to. attempt a demonstration of this 
thesis to explain why it is not inconceivable that, important as 
these documents were, their exact text may be uncertain. 

Luther Martin in one of the opening passages of his Genu- 
ine Information, says of the Convention:" 

So extremely solicitous were they that their proceedings should not 
transpire, that the members Avere prohibited even from taking copies of 
resolutions on which the Convention were deliberating, or extracts of any 
kind from the journals, without formally moving for and obtaining permis- 
sion by a vote of the Convention for that purpose. 

The rules of the Convention now in print,'' ))ear him out so 
far as the journals a-re concerned, but not as to resolutions, 
which like the various "plans," were not regarded as parts of 
the journal. Yet the injunction "that nothing spoken in the 
House be printed, or otherwise published, or communicated 
without leave," doubtless required secrecy as to the plans. 
Pierce sa3^s,'■ speaking apparently of the Virginia plan: 

A copy of these propositions was given to each member with an injunc- 
tion to keep everything a profound secret. One morning, by accident, 
one of the members dropped his copy of the i>ropositions, which, being 
luckily picked up by General Mifflin, was presented to General WasliiTig- 
ton, our President, who put it in his pocket. 

He goes on to relate how the General, the next day, just 
before adjournment, forcibly reproA^ed such carelessness, 
tbrew the paper on the table — 

and (juitted the room with a dignity so severe that every person seemed 
alarmed; for my jiart I was extremely so, for putting my hand in my 
pocket I missed my copy of the same paper; but advancing up to the 
table my fears soon dissipated; I found it to be tiie liandwritingof anothei- 
l)erson. 

In other words, the copy which each member had of the 
propositions was, in the ordinary case, a copv made l)y 
his own hand. Those who know how few persons can copy 

" YiitcR, erl. 1821, p. 12; Elliot, T, ;V)5. I quote Elliot, unless the contrary is stated, from 
that crlition of 1S3U and subsequent years which is designated on its title-page as the sec- 
ond, hut is the third— the edition commonly used. See also what Martin says, ibid., 358, 
of the refusal of the Convention to permit its momLiers at the time of the adjournment of 
,Tuly26, " to take correct copies of the propositions to which the Convention had then 
agreed." 

'> Documentary History of the Constitution, I, 64. 

'•American Historical Review, HI, :V2t. 



THE t^EDERAL CONVENTION OF 1181. 105 

anything accuratelj^ will see here a natural source of varia- 
tions, even in that more formal and deliberate age. More- 
over, there would always be much chance that a member, 
following the progress of debate and conclusion with his 
paper before him, should interline it with some of the addi- 
tions or amendments which were successively resolved upon, 
and that these should creep undistinguished into some fair 
copy which he might subsequently make. 

Whatever be the causes, the variations certainly exist. Of 
the Virginia resolutions there are, as we have said, four texts. 
As the original text in Randolph's handwriting, if such there 
were, is nowhere said now to exist, it is natural to take up 
first that which Madison gives." It is printed in the Docu- 
mentary History' of the Constitution^ and in Hunt's Writings 
of flames Madison.'' Gilpin printed it, with a small but im- 
portant variation, in The Madison Papers,'' and it may also be 
found in the volume strangely called "Journal [meaning 
Debates] of the Federal Convention, kept liy James Madison 
"'• * '• edited by E. H. Scott,"'' and in the fifth volume of 
Elliot.'^ This text, which we may call A, is sufficiently de- 
scri])ed by saying that the ninth resolution in its series begins 
with the words: 

Resolved, That a national judiciary l)e established, to consist of one or 
more supreme tribunals and of inferior tribunals to be chosen by the 
National Legislature, to hold their offices during good behavior, and to 
receive, etc. 

Texts of this type can not in this section exactty represent 
the original resolutions. This may be seen by an examina- 
tion of the journal of the Committee of the Whole for June 4 
and June 5.^ It there appears, by explicit quotation, that the 
ninth resolution undouljtedly contained originall}^ the words: 

Resolved, That a national judiciary be established, to be appointed by the 
National Legislature, to hold their offices during good behavior, and to 
receive, etc. 

« Though the speech with which Randolph accompanied the introduction of his reso- 
lutions appears in Madison's notes in Randolph's handwriting, tlie text of the resolutions 
there given is in Madison's hand. Hunt, Writings of James Madison, III, 21 n. 

6111,17-20. 

cIII, 17-21. 

(« II, 731-735. 

e Pp. 61-64. Mr. Hunt gives to Madison's notes the same inappropriate and mislead- 
ing name. 

/Pp. 128-130. There are differences of punctuation; hut they are hardly significant 

ff Documentary History, I, 210; Elliot, I, ItiO, 161. 



106 AMERICAN- HISTOTIICAL ASSOCIATION^. 

Of the insertion of the other words quoted above in this 
clause, or, rather, of the insertion of words closely resembling 
them, there is definite record in the form of a vote of the 
Committee of the Whole, June tt, ''to add these words to the 
first clause of the ninth resolution, namel}^: 'To consist of 
one supreme tribunal, and of one or more inferior tribunals.""* 
Plainlj^ these words can not have been in the original plan. 
Furthermore, on June 12 — 

it was moved and seconded to alter the resolution submitted by Mr. Ean- 
dolph, so as to read as follows, namely: "That the jurisdiction of the 
supreme tribmial shall be to hear and determine in the dernier resort all 
pirades, felonies, etc." ^ 

In other words, now that a provision for both supreme and 
inferior tribunals — a provision not included in the original 
document — had been inserted by the committee, it seemed 
necessary also to modify the clause relating to jurisdiction by 
giving to the supreme tribunal the position of an appellate 
court. Now, text A in this clause gives the reading — 

That the jurisdiction of the inferior tribunals shall be, to hear and de- 
termine in the first instance, and of the supreme tribunal to hear and 
determine in the dernier resort, all piracies, etc. 

As before, the proposal recorded in Committee of the Whole 
shows that these words were not in the original resolutions. 
It will be noticed that here one supreme court is spoken of, 
whereas in the earlier clause the reading of A is "one or 
more supreme tribunals," in itself an improbable reading. 

Probably Article 9 of the Virginia plan originally read: 

Resolved, That a national judiciary be established, to be appointed by 
the National Legislature, to hold their offices during good behavior; and 
to receive punctually, at stated times, a fixed compensation for their 
services, in which no increase or diminution shall be made so as to affect 
the persons actually in office at the time of such increase or diminution; 
that its jurisdiction shall be to hear and determine all piracies and felonies 
on the high seas, all captures from an enemy, and cases in which foreigners 
or citizens of other States applying to such jurisdiction may be interested; 
[perhaps, also,] or which respect the collection of the national revenue, 
impeachment of any national officers, and questions which may involve 
the national peace and harmony. 

a Documentary History, I, 210; Elliot, I, 160, 101, ami Madison's notes in Dorarmcntary 
History, III, 62. 
^Documentaxy History, I, 222. 



THE FEDERAL CONVENTION OF 1787. 107 

The votes in the Committee of the Whole" do not enable 
one to be sure whether these last lines were or were not in 
the original draft. 

It was intimated above that Gilpin's text shows a peculiar- 
ity not found in the books first mentioned. In view of the 
pains taken with the text of the Documentary History and 
by Mr. Hunt, it is to be supposed that a phrase which is not 
in their versions has no place hi the manuscript which they 
and Gilpin alike follow. However, as the insertion is one 
which plays a part in other texts than A, it may be as well to 
consider it at this point. It occurs in the text of the sixth of 
the Virginia resolutions, toward the end of that article. This 
concluding portion, in Gilpin, declares that the National Legis- 
lature ought to be empowered — 

to negative all laws passed by the several States, contravening in the 
opinion of the National Legislature the articles of Union, or any treaty sub- 
sisting under the authority of the Union; and to call forth the force of the 
Union against any member of the Union failing to fulfill its duty under the 
articles thereof. 

The words italicized above are those not found in the Docu- 
mentray History or in Hunt's Writings of James Madison, 
That they formed no part of the original document may be 
seen by inspecting the journal of the Committee of the Whole 
for May 31, where we read:* "The following words were 
added to this clause on motion of Mi'. Franklin, 'or any treaties 
subsisting under the authority of the Union.' " Yet Rives^ in 
his summary of the plan adds the words "and treaties" at this 
point, and so does Madison himself in a letter to John Tyler, 
written about 1833.'^ It may be added that Madison, in his 
summary of the resolutions, given in this same letter, inserts 
the provision for supreme and inferior tribunals, discussed 
above;" and so does Bancroft, in a summary which he places 
in quotation marks. ■^" 

Text B of the Virginia plan is to be found in the official 
Journal of the Convention, published in 1819 under the author- 

a Documentary History, I, 223; III, 117. 
& Documentary mstory, I, 203; Elliot, I, 153. 
c Life of James Madisonj II, 314. 

d McGuire, Selections from, the Correspondence of James Madison, p. 312; Letters of 
Madison, IV, 283. 
elbid., 310; ibid., 282. 
/ History of the Formation of the Constitution, II, 12. 



108 AMEBIC AN HISTORICAL ASSOCIATION. 

ity of the Secretary of State;" in Yates's Secret Proceedings 
and Debates, * and in the second edition and the third or usual 
edition of Elliot's Debates.^' Yates says: "I have taken a 
copy of these resolutions, which are hereunto annexed." But 
Lansing, who transcribed Yates's notes, says, in a passage not 
copied into Elliot,'^ that the several papers referred to did not 
accompan}^ them, and we are compelled to infer that the single 
source of all these versions is the Journal of 1819. The pecul- 
iarities of this text are the following: In the sixth resolution it 
contains the words "or any treaty subsisting under the author- 
ity of the Union." The ninth begins with the words "i?^- 
solved., That a national judiciary be established to 

hold their offices during good behavior, and to receive punctu- 
ally," etc. Yet though in this first clause there is no mention 
of the distinction between higher and lower Federal courts, 
the clause relating to jurisdiction, in the same resolution, be- 
gins with the words "That the jurisdiction of the inferior 
tribunals shall be to hear and determine in the first instance, 
and of the supreme tribunal to hear and determine in the 
dernier ressort," etc. Finallj', there is, in Elliot's third edi- 
tion," an additional resolution, with the number 16, reading: 
"That the House will to-morrow resolve itself into a Commit- 
tee of the Whole House, to consider of the state of the Ameri- 
can Union." It is obvious that this last is obtained hj "run- 
ning in" with the resolutions a portion of the journal of the 
Convention's proceedings of May ^9iJ' That the provision 
respecting treaties, in Article 6, has no place in the document, 
has already been shown in the case of Gilpin. As to Article 9, 
the journal of the Committee of the Whole, June 5, when this 
article was receiving its first consideration, reads : ^ "It was then 
moved and seconded to strike out the words ' the national legis- 
lature,' so as to read 'to be appointed by.'" Accordingly the 
first clause of the article must have originall}^ contained the 
words "to be appointed by the national legislature," and an}' 
text which does not contain them can make no claim to be the 
true original. To the phrases about the jurisdiction of su- 

a Pp. 67-70. 

'' Pp. 209-212 of the edition of 1821; pp. 226-229 of that of 1839. 

'■Second edition, I, 180-182; "second" (third) edition, I, 143-145. 

''Yates, ed. 1821, p. 207. 

'■ But not in the first, nor in Yates, nor in the .lournal of 1819. 

/ Docnmentar.v History, 1, 55. 

'/Ibid., I, 211. 



THE FEDERAL CONVENTION OF 1787. 109 

preme and inferior tribunals the same arguments apply as 
have been adduced above in the criticism of text A, but with 
additional force from the fact that if the distinction had not 
been made in the first clause of the article it is unlikel}^ that 
we should find it appearing in the last. 

Text C is printed only in the Documentary History/* It is 
derived from a manuscript which came to the Department of 
State from Gen. Joseph Bloomfield, executor of David Brear- 
ley, member of the Convention from New Jersey.* It can not 
correctly represent the original for the following reasons: 
In Article 4 it provides that the term of the members of the 
first branch of the national legislature shall be three years, 
yet the journal of the Committee of the Whole for June 12 
shows the committee on that day for the first time inserting 
the words "three years" into a blank previously existing 
at this point.'' Article 5 provides that the members of the 
second branch shall be " elected by the individual legislatures," 
which was not agreed to (as a substitute for election by the 
first branch) until June 7/^ Thirdly, in Article 6 the provi- 
sion respecting treaties, already commented upon, is included. 
Fourthly, the beginning of Article T reads: 

Resolved, That a national executive be instituted, to consist of a single 
person, with powers to carry into execution the national laws, and to ap- 
point to offices in cases not otherwise provided for, to be chosen by the 
national legislature for the term of seven years, to receive punctually, etc. 

But the journal of the Committee of the Whole, June 1,« 
shows exactly what must have been the reading of the original 
at this point, namely: ''Besolved, That a national executive 
be instituted, to be chosen by the national legislature for the 

term of years, to receive punctually," etc. ; and it shows 

the stages by which this became modified into the form pre- 
sented by text C. Fifthly; Article 9 of the latter begins: 
^'Resolved, That a national judiciary be established, to consist 
of one supreme tribunal, to hold their oflices during," etc.; 
yet recognizes in its clause respecting jurisdiction the same 
distinction of supreme and inferior which is made in text 
B, and in the same words. Finally, Article 13 declares that 
the assent of the national legislature " ought to be required" 
to proposed amendments to the articles of union, whereas the 

f( Documentary History, I, 329-332. rflbid., I, 202, 215. 

('Journal (of 1819), pp. 10, 11. elbid., I, 203. 

'•Documentary History, I, 220. 



110 AMEEICAN HISTOEICAL ASSOCIATION. 

quotation of this resolution in the journal of the Committee of 
the Whole "■ supports the reading " ought not to be required," 
which is given in the other texts, and must obviously be 
correct in any case. 

The fact apparentl}^ is that text C represents the original, 
plus most of the modifications made up to about June 11 or 12. 
Incorrect as it is, it ma}^ not improbabl}^ be the source from 
which Secretary Adams derived the more correct text (B) 
which he printed in the official journal in 1819; for, the man- 
uscript journal not containing these resolutions, it is difficult 
to see what other text than Brcarley's could have been acces- 
sible to him. 

Text D is not in print, but is found among the manviscripts 
of William Paterson, member of the Convention from New 
Jersey.^ In the form in which it now exists, it is not a first 
rough copy on separate sheets (the form in which we may 
assume that the members' copies of the Virginia resolutions 
were first taken), but is copied neatly into a little book, which 
also contains Judge Paterson's copies of several other funda- 
mental documents of the Convention/' This text omits from 
the fourth resolution the words, "to be incapable of reelection 

for the space of after the expiration of their term of 

service;" but this may be a mere slip, due to the verbal sim- 
ilarity of this phrase to that which in the other texts precedes 
it. Like B and C and Gilpin's version of A, it inserts in the 
sixth resolution the provision respecting treaties. It fills the 
blank in the number of years of the Executive's term of office 
(seventh resolution) with the word " seven," which the Com- 
mittee of the Whole did not do till June l.^*^ In the ninth 
resolution, while the i-eading is otherwise like that of text A, 
there is a blank before the word "inferior," so that the phrase 

rea;ds: "Of one or more supreme tribunals, and of 

inferior tribunals," Although, for reasons already- given, 
these words can not be considered to have been a part of the 
original document, it may be that the form in which they here 
appear represents, more correctly than that presented by Mad- 
ison, the intentions of the Committee of the Whole on June 



a Documentary History, I, 219. 

6 Lent to the writer by the kindness of Miss Emily K. Paterson, of Perth Amboy. Tlicre 
is a copy among the Bancroft MSS. at the Lenox Library. 

t^The report of the Committee of the Whole House, Judge Paterson's own resolves, and 
Colonel Hamilton'^ plan. 

rf Documentary History, I, 205. 



THE FEDERAL CONVENTION OF 1787. Ill 

4 and June 6. The committee then voted, first, to add the 
words "to consist of one supreme tribunal and of one or more 
inferior tribunals," and then to strike out the words " one or 
more."'* It may have been intended to leave a blank in the 
place of the latter. However this may be, arguments already 
stated suffice to show that text D has no more claim than the 
others to represent the exact form of the Virginia resolutions, 
laid before the Convention on May 29 by Edmund Randolph. 
The exact form of those resolutions can be recovered only by 
inference, and in one or two particulars remains uncertain. 

V. THE TEXT OF THE PINCKNEY PLAN. 

On May 29, immediately after the Virginia resolutions had 
been referred to a Committee of the Whole House, " Mr. 
Charles Pinckney, one of the deputies of South Carolina, laid 
before the House for their consideration the draft of a Fed- 
eral Government" which he had prepared, and it also was 
referred to that committee. ^ There is no evidence of any 
debate upon it beyond the author's remark, that he "con- 
fessed that it was grounded on the same principle as of the 
above resolutions," ^ meaning those offered by Governor Ran- 
dolph, Nor does it appear to have been separately considered 
at any subsequent time. On July 24 the Committee of the 
Whole was discharged from further consideration of it, and it 
was referred to the Conunittee of Detail, along with the reso- 
lutions reported from the Committee of the Whole and those 
offered by Paterson, of New Jersey.'^ No mention of it in the 
Convention by anj^one but its author seems to have come 
down to us. There is something noteworth}^ in this silence. 
It is not impossible that the other members thought their 
youngest colleague somewhat presumptuous in o'ffering his 
lucubration at the very outset and laying it complacently 
alongside the mature conclusions of the grave and experienced 
Virginia Delegates.^ 

"Documentary History, I, 210, 211. 

bibid., I, 55. 

c yates, ed. 182], p. 97; Elliot, I, 391; Documentary History, III, 14, 34. 

^Documentary History, I, 109; III, 423, 443. 

<■ O'Neall, Bench and Bar of South Carolina, II, 140, tells us that Pinckney always said in 
after life that he had never risen to addres.? the Convention without feelings of deep diffi- 
dence and solemnity; so,also, " W.S.E." in De Bow's Review, XXXIV, 64. Butthe letters 
printed by the present writer in the American Historical Review, IV, 113-129, reveal a 
character marked by much vanity and self-assertion. See, also, Jefferson's Writings, ed 
Ford, VIII, 289. 



112 AMERICAN HlvSTORlCAL ASSOCIATION. 

Moreover, in 1818, when the Seerctary of State, John 
Quinc}^ Adani.s, was preparing- the journal of the Convention 
for pulilication, no copv of the Pinckney draft was found 
either among its original papers or among tliose whieh had 
been added ))y General Bloonitield. In the hope of repairing 
the omission, Adams, after apphang in vain to Madison, who 
had no copy," wrote to Pinckney, then still living in South 
Carolina, and asked him for a copy of his proposals.'' Pinck- 
ney replied, in a letter which has been printed,'' saying that 
he had among his papers four or li\o rough drafts of his plan, 
and could not l)e a])solutely sure which was the one actually 
presented; but that they differed in no essentials, onh^ in 
some words and the arrangement of the articles, and that he 
sent the one Avhich he believed to be the proper document. 
Adams printed the document in the Journal/' with a footnote 
saying that the paper had lieen furnished by Pinckney. 
From that day (1819) to this it has figured in man}^ l)ooks as 
the "Pinckney plan." It is printed, in identical text, in 
Yates,' in Elliot,-^' in Gilpin,'/ in the Documentary Historj^,'' 
and even in Justice Miller's Lectures on the Constitution* 
and Hunfs Writings of James Madison.-' The paper which 
Pinckne}^ sent to Adams is still in the custody" of the Depart- 
ment of State. Mr. Hunt, who gives a facsimile of a portion 
of it and of a part of the letter in which it was inclosed, 
declares that the plan is written upon paper of the same size 
as the letter, and with the same ink; that it is undoubtedly^ 
contemporaneous with the letter, and that l)oth are written 
on paper l^earing the water-mark of the year ITUT.^' 

That the so-called "Pinckney plan" is not authentic has 

"Sec his letter in the appendix to J. C. Hamilton's History of the Rcimblic, third edi- 
tion, III, iii. 

'' See Memoirs of John Quincj- Adams, IV, 365. 

'■Letter of December 30, ISIS, printed by Mr. Worlhingtcu C. Ford in the Nation of 
May 23, 1895, LX, 397, 39S; and by Mr. Gaillard Hnnt in his Writings of James Madi.son, 
III, 22-24. An extract was printed in 1S70 by Rives, in his Life and Times of James 
Madison, II, 3.i4. Mr. Hnnt is in error in saying. Ill, 2-5 n., that the letter is printed in tlie 
Docnmentary History. 

't Pp. 71-81. 

'■Ed. Ifs21, p]). 212-2'Jl. The source is the Jonrn;il printed two years before; see the 
note to p. 207. 

/I, 145-149. 

!7 Pp. 735-74(>. 

'' I, 309-318. 

'• Pp. 732 ss. 

J III, 23-36. 

'"Writings of James Maili.son, HI, xvii and 'Jl. 



THE FEDERAL COJSTVENTIOlSr OB' 1787. 113 

been so publicly and so successfully demonstrated that a writer 
who does not like to spend his tim^ in slaying- the slain might 
be excused if he took this for granted and passed on to cast 
what new light he could upon the problem of the real Pinck- 
ney plan. But in reality the two inquiries are closely con- 
nected; and, moreover, the legendary version has such vitality 
that it is no harm to cast one more stone upon its funeral cairn 
as one passes by. In 1859 a South Carolina writer assures us 
that, in view of the remarkably close agreement between 
Pinckney's proposals and the finished Constitution, " he has 
"always been considered as entitled to the high and honorable 
designation of the Father of the Constitution."^' This was 
before much of the pertinent evidence to the contrary had 
been made public. But such was not the case when, in 1894, 
in the income-tax decision, the Chief Justice of the Supreme 
Court of the United States quoted the "Pinckney plan" as if 
it had authority,* It may be that — 

"Error, wounded, writhes in pain, 
And dies among his worshippers;" 

but, if we are speaking of historical error, he manifestly 
takes his time about it. 

The supposed plan might instantly be put out of court on 
the ground that it is '' too good to be true." A novice in his- 
torical criticism, provided he had read the story of the long 
and shifting and sometimes bitter disputes by which the Con- 
vention had hammered into shape a Constitution for the United 
States, would say at once that it was glaringly improbable — 
in fact, impossible — -that as the result of this process they 
should come around to the acceptance, to the extent of five- 
sixths, of a document offered to them at the outset in full 
detail; or, to put it in another way, that their youngest mem- 
ber should succeed beforehand in framing a constitution so 
good that they could hardly improve it, yet that ' ' the wisest 
council in the world" should not be able to perceive this fact 
till they had wrangled over the document (without expressly 
mentioning it) for more than three months. 

a J. B. O'Neall, Bench and Bar of South Carolina, II, 139. So, also, " W. 8. E. of S. C," 
in his sketch of Pinckney in De Bow's Review, XXXIV, 63. "AY.S.E." was William 
Sinker Elliott, grandson of Pinckney. 

b Pollock V. Farmers' Loan and Trust Co., 157 U. S. Reports, 562, 

H. Doc. 461, pt 1 — -8 



114 AMEKICAN HISTORICAL ASSOCIATIOlSr. 

It now appears that the document had not been long pub- 
lished before its authenticity was privately disputed. John 
Taylor, of Caroline, to be sure, who in his New Views of the 
Constitution (1823) might be supposed to have exhausted sus- 
picion concerning the integrity of the Journal, seems to accept 
the ''Pinckneyplan" Avithout a murmur. « But Rufus King, 
who died in 1827, told John Quincy Adams that it was not 
genuine, and Madison said the same to Jared Sparks when 
Sparks visited him at Montpelier in April, 1830. As the pas- 
sage of Adams's diary in which these questionings are brought 
out has apparently not before been used in this connection, 
and as they seem to be the earliest recorded, it may be worth 
while to quote at length from that ' ' copious storehouse of 
damnations.'- '' 

Sparks said he had been spending a week at Mr. Madison's, who 
ypoke to him much of tlie proceedings and pubUshed Journal of the 
Convention of 1787. He said he knew not what to make of the plan of 
Constitution in that volume purporting to have been presented by Charles 
Pinckney, of South Carolina. He said there was a paper presented by 
that person to the Convention, but it was nothing like the pajier now in 
the book. It was referred to the committee who drafted the plan of the 
Constitution, and was never afterwards in any manner referred to or 
noticed. In the book it has the appearance as if it was the original draft 
of the Constitution itself, and as if that which was finally adopted Avas 
Pinckney' s plan, with a very few slight alterations. I told JMr. Sparks that 
Rufus King had spoken to me of C. Pinckney' s paper precisely in the same 
manner as he says Mr. Madison now does; that it was a paper to which 
no sort of attention was paid by the Convention, except that of referring 
it to the committee, but when I compiled the Journal of the Convention, 
Cliarles Pinckney himself sent me the jilan now in the book as the paper 
which he had presented to the Convention, and with it he wrote me a 
letter which obviously held the pretension that the whole plan of Consti- 
tution was his and that the Convention had done nothing more than to 
deteriorate his work by altering some of his favorite provisions. Sparks 
said INIr. JNIadison added that this plan now in the book contained several 
things which could not possibly have been in Pinckney's paper, but which 
rose out of the debates upon the plan of Constitution reported by the com- 
mittee. Pie conjectured that Mr. Pinckney's memory had failed him, and 
that, instead of a copj' of the paper which he did present, he had found a 
copy of the plan reported by the committee with interlined amendments, 
perhaiis proposed by him, and, at a distance of more than thirty years, 
had imagined it was his own plan. 



<i P. 19. 

''Miiy4,lS;>0. Memoii>, VIH,'_'21, 225. See also Sparks'sroeord of his ponvcrsation with 
Madison in H. B. Adams's Jarcd Sparks, I, 4C.:>, and Ins forrespondeiiue witli Madison, 
ibid., 11,225-231. 



THE FEDERAL CO]SrVE]S-TIOTT OF 1*187. 115 

In several letters written during the next few years, but not 
published till 1867, Madison went into the question more 
explicitly. Writing to Sparks in 1831, he declared the evi- 
dence ag-ainst the draft irresistible." For instance, he pointed 
out that, whereas in that document the House of Representa- 
tives is made the choice of the people, it was the known 
opinion of Pinckney, who lodged in the same house with him 
at Philadelphia, that they should be chosen by the State legis- 
latures; that on June 6 Pinckney, agreeably to previous notice, 
moved an amendment in that sense; and that in a letter to him, 
dated March 28, 1789, Pinckney had asked him if he was not 
"abundantly convinced that the theoretic nonsense of an 
election of the members of Congress by the people, in the 
first instance, is clearly and practically wrong."* In two 
subsequent letters— one written in 1834 to T. S. Grimke, the 
other in 1835 to W. A. Duer— he dwelt upon the same dis- 
crepancies, using the Journal rather than his own notes as the 
touchstone, and requesting the letters to be regarded as con- 
fidential.'" It is not necessary to detail all the comparisons 
made. Substantially the same were published in 1810 in an 
appendix to Madison's notes of the debates, edited by Gilpin. ^^ 
In this memorandum, moreover, and in two of the letters 
mentioned above, Madison adduces evidence from another 
quarter in support of his contention that the draft could not 
be what it purported to be. This is from a pamphlet entitled 
" Observations on the Plan of Government, submitted to the 
Federal Convention in Philadelphia on the 28th [sic] of May, 
1787, by the Hon. Charles Pinckney, esq., LL. D., Delegate 
from the State of South Carolina, delivered at different times in 
the course of their discussions."* It was "privately printed" 
in New York within a month of the rising of the Convention. 
Madison, on October 11, sends a copy of it to Washington./ 

n Letters of Madison, IV, 201-203; Adams's Sparks, II, 227. 

b In January of the same year Pinckney had written to the same effect to Rufus King: 
" You know I always preferred the election of representatives by the legislature to that 
of the people, and I will now venture to pronounce that the mode which you and Madi- 
son and some others so thoroughly contended for and ultimately carried is the greatest 
blot in the Constitution." (Life and Correspondence of Rufus King, I, 359.) 

c Letters of Madison, IV, 337, 378. See also pp. 172, 181, 183 

f! Gilpin, III, app. v-vii; Elliot, V, 578, 579. 

cNo. 143 in Ford's Bibliography of the Constitution. 

/ Letters of Madison, I, 342; Sparks, Letters to M' ashington, IV, 182. Washington's copy 
of the pamphlet is still in existence. Catalogue of the Washington Collection in the 
Boston Athenseum, p. 535. 



116 AMERICAN HISTOEICAL ASSOCIATION. 

They exchange sentiments upon it, in their grave manner. 
Washington writes: "Mr. C. Pinckney is unwilling, 1 per- 
ceive by the inclosures contained in your favor of the 13th 
[14th], to lose any fame that can be acquired by the publica- 
tion of his sentiments. "« To which Madison replies: "Mr. 
Charles Pinckney's character is, as you observe, w^ell marked 
by the publications which 1 inclosed."* It is not generally 
known that Pinckney immediately reprinted his "Observa- 
tions" in a South Carolina newspaper.^' In 1857 they were 
reprinted by Frank Moore in Volume I of his American 
Eloquence.'' The original is very rare.'' Madison, in 1831, 
having but a mutilated copy, took pains to borrow one from 
New York, and by its means had no difficulty in casting still 
further discredit on the draft contributed by Pinckney to the 
Jonrnal.-^' The pamphlet did not, indeed, give the text of the 
project to which its title referred. But m&nj references were 
made to it in the course of the "Observations," which, in fact, 
had the form of a series of arguments based on its provisions, 
which were taken up in order, and in some cases cited by 
number. It was plain that they diiiered widely from those 
of the printed draft. " 

In 1810 and in 1859 John C. Hamilton exposed fully the 
untrustworthy character of the latter. 5' In 1870 Rives did 
the same.''' When Bancroft in 1883 published his Formation 
of the Constitution he contented himself with sajdng only of 
the draft submitted to the Convention by Pinckney that "no 
part of it was used and no copy of it has been preserved."* 
In 1891, in a review article in the Nation, the worthlessness 
of the accepted text was again insisted on. This led to the 
publication of Pinckne3^'s original letter by Mr. Worthington 

a October 22, 1787. Ford, XI, 175; Sparks, IX, 274. Sparks characteristically has "Mr. 
C.P ." 

b October 28. Gilpin, II, 653; Elliot, V, 568; Sparks, Letters to Washington, IV, 186. 

<■ A copy of the State Gazette of South Carolina for November 1, 1787, in the library of 
the American Antiquarian Society, contains an installment (evidently the second) of the 
pamphlet, and others follow in the two succeeding numbers (November 5, 8), M'hich are 
all the society possesses for that month. No doubt the print began October 29 and ran 
till November 29. 

<l Pp. 362-370. 

e Mr. Ford notes copies at the Astor Library and in the libraries of the Boston Athe- 
naeum and the Massachusetts and New York Historical Societies. 

/ Letters, IV, 182. See his comparisons which accompany the letter to Pucr, id., IV, 379. 

ffLife of Hamilton, II, 469; History of the Republic, III, 258-260. 

'(Life and Times of Madison, II, 353-357. 

'11,14. 



THE FBDEKAL CONVENTIOlSr OF 1*787. 117 

Ford, as alread}' mentioned/* and to an article by Mr. Paul L. 
Ford, in which he used the pamphlet "Observations" as the 
basis for an attempt to reconstruct the actual Pinckney plan.* 
Just how far this method is valid will be considered later. 
For the present it is sufficient to have narrated how, by a 
series of criticisms extending- from Rufus King's time to 
ours, the so-called draft has been so utterly discredited that 
no instructed person will use it as it stands as a basis for con- 
stitutional or historical reasoning. What relation it bears to 
the actual plan is a matter for separate investigation. We 
have seen what Madison's kindly explanation was, as given in 
conversation with Sparks. In another form, with a difference 
to which we shall advert later, he also gives his view of the 
matter in a note printed by Gilpin, namely, that at some time, 
having lost the original, Pinckney had resorted for a copy — 

to the rough draught, in which erasures and interlineations, following 
what passed in the Convention, might be confounded, in part at least, 
with the original text, and after a lapse of more than thirty years con- 
founded also in the memory of the author, c 

But is it possible to recover the provisions of the actual 
Pinckney plan? There is one, and so far as now appears 
only one, secure method of recovering a part of them.'^ We 
may be fairly certain that any provisions which Pinckney is 
found advocating, against the general opinion or against the 
clauses of the plan which the Committee of the Whole had 
adopted as the main basis of its discussions, are portions of 
his own plan, provided we find him advocating them during 
the next two weeks after its presentation. At later stages 
his moving an amendment or speaking in its favor is no clear 
evidence of this, for it is then possible that the process of 
debate may have suggested to his mind a new device or con- 
vinced him of the merit of one suggested by another. Now 
it so happens that in his suggesting of provisions, as revealed 
by the recorded debates, there are two well-defined periods. 

a Nation, LX, 398, May 23, 1895. 

&Ibid., LX, 458, June 13, 1895. 

c Gilpin, III, app. vi. 

dA footnote in Hunt's Madison, III, 25, says that "correspondence with Pinckney's 
descendants reveals the fact that some of the notes to which he alludes in his letters are 
extant;" but Mr. Hunt tells me that this is a misprint— " some " for "none." See his 
preface, p. xiv. See also note « on p. 131. The statement in the text now requires modi- 
fication, in view of my discovery of large parts of Pinckney s original text. See p. 128, 
infra. 



118 AMEEICAN HISTORICAL ASSOCIATION. 

The one extends to June 13, the main period of consideration 
in Committee of the Whole. Then comes, save for one occa- 
sion, a long- hiatus, extending to Jnlj 5, during which he 
shows no advocacy of definite provisions. Oil June 25, to be 
sure, he makes along- and elaborate speech, a "great effort," 
of which he was evidently proud, for he gave Madison a copj'- 
of it,'* and used it later in the South Carolina convention;^ 
but it is not a thing- from which definite details of his prefer- 
ences can be derived. These emerge again after July 5, and 
from time to time till the end of the Convention; but now the 
discussions stood on an altered basis in so many respects that, 
as intimated above, we can not relate his remarks to his plan 
with the same sense of security. 

Throughout the first of these two periods, the fortnight im- 
mediatety following the announcement of his plan, all Pinck- 
ney's motions and remarks g-oto show that it, "grounded," as 
he himself declared, "on the same principle as" the Virginia 
plan,^ proA^ded for a national government with a bicameral 
legislature, an executive, and a judiciary. He planned for a 
single executive '' to be elected by the national legislature " for 
the term of seven years,'' and for a judiciary to be elected by 
the same bod}^^' His national legislature was to have a gen- 
eral power to negative State laws.''' The members of its first 
or more numerous branch were to be elected b}^ the legisla- 
tures of the States.' In this branch each State was to be 
represented by a number of members proportioned to the 

o Documentary Historj% III, 199-207; Gilpin, II, 945-95-!; Elliot, V, 233-238; Hunt, III, 
267-277. Another version, containing- the sanie matter differently arranged, is in Docu- 
mentary History, III, 789-795. Yates, pp. 161-163; Elliot, i, 443-144. 

b It is printed in the State Gazette, of South Carolina, for May, 1788. Mr. A. S. Salley, 
of Charleston, and Miss Mary Robinson, of Worcester, have kindly searched that paper 
for me. It is also printed in Carey's American Museum, IV, 256-2G3, and in Elliot, IV, 
318-323. 

c Yates, p. 97; not "principles," as in Elliot, I, 391. The context shows that Yates 
meant the principle of consolidation. 

rfJune 1, 2. Documentary History, III, 35, .51; Hunt, III, 57, 77; Yates, p. 101; Elliot, 
I, 394. 

e Pierce-, in American Historical Review, III, 321. See also Documentary History, III, 
355; Hunt, III, 451, 452 (July 17). 

/June 1. Documentary History, III, 39; Hunt, III, 63. 

!/June5, 13. Documentary History, III, 64, 117; Hunt, III, 92, 157; Yates, p. 120; Elliot, 
I, 409. 

'iJune 8. Documentary History, III, 88; Hunt, III, 121; Yates, p. 108; Elliot, I, 400; 
King, I, 597, 598. 

jjune 6, 7. Documentary History, III, 69; Hunt, III, 99; Yalcs, p. 105; Elliot, I, 397; 
King, I, 593. Sec also the letters of January and March, 1789, to King and Madison, 
already mentioned. 



THE FEDEEAL CONVENTION OF 1787. 119 

number of its free inhabitants plus three-iifths of the slaves." 
Its members were to be reelig'ible, and not subject to recall 
by the legislatures of their States.* The members of the sec- 
ond branch were to be elected either by the State legislatures 
or by the first branch, it is not certain which. ^ Each State 
was to have from one to three members in this branch, accord- 
ing to its population.'^ The States were also to be grouped 
into four g-reat geog-raphical districts for senatorial elections, 
seemingly with the object of securing a four-years' rotation.* 
Apparently Pinckney had provided for a council of revision, 
consisting of the executive magistrate and the heads of the 
principal departments;-^' and apparently he had arranged that 
if unanimity could not be secured nine States should be au- 
thorized to unite under the new form of government. ^J 

Here was a very respectable scheme, which might well have 
received much attention if the Virginia plan, which in general 
it so much resembled, had not had the right of way. It seems 
to have escaped notice that this true plan of Pinckney's is par- 
tially described, though without mention of his name, in a 
contemporar}^ letter long in print.''* Writing to Dickinson and 
urging his attendance, George Head, of Delaware, under date 
of May 21, says: 

I am in possession of a copied draft of a federal system intended to be 
proposed, if something nearly similar shall not precede it. Some of its 
principal features are taken from the New York system of government. 

"June 11. Documentary History, III, 106, 107; Hunt, III, 143. According to Pierce 
ubi sup., 324, he had on June 6 declared for a representation proportioned to pecuniary 
contributions. Later, July 6, 12 (Doc. Hist., Ill, 283, 824; Hunt, III, 368, 415), he declared 
his personal preference for counting the whole population, free and slave. 

b June 12. Documentary History, III, 114; Hunt, III, 152. 

oMay 31, June 7, 8. Documentary History, III, 31, 86, 94; I, 216; Hunt, III, 52, 119; cf. 
Read's letter, described infra. 

d June 7, 8. Documentary History, III, 69, 84; Hunt, III, 119, 127. To the same effect in 
Documentary History, III, 263, 264; Hunt, III, 343, 344; Yates, p. 201; Elliot, I, 474. This is 
later, July 2, but Pinckney is expressly referring to his own plan, as he did also on June 
25, reading from it at the end of his long speech, as appears from the conclusion, sum- 
marized by Yates, p. 163 (Elliot, I, 414), but not given by Madison. 

« May 31. Pierce, in American Historical Review, III, 319. In later remarks, July 14, 
Pinckney suggests for each State its number of senators, varying from 1 to 4; probably 
his four districts, the senators from one of which would have retired each year, would 
have been (1) New England, (2) New York, New Jersey, and Pennsylvania, (3) Delaware, 
Maryland, and Virginia, (4) the Carolinas and Georgia. Documentary History, III, 385; 
Hunt, III, 428. 

/June 6. Documentary History, III, 78; Hunt, III, 110. 

3 June 5. Documentary History, III, 67; Hunt, III, 96. 

'' W. T. Read's Life and Correspondence of George Read, p. 443. I am informed by Mr. 
John W. Jordan, secretary of the Historical Society of Pennsylvania, that while the let- 
ter is among the George Read papers possessed by the society, the copied draft is not. 



120 AMERICAN HISTORICAL ASSOCIATION. 

A house of delegates and senate for a general legislature, as to the great 
business of the Union. The first of them to be chosen by the legislature 
of each State, in proportion to its number of white inhabitants, and three- 
fifths of all others, fixing a number for sending each representative. The 
second, to wit, the senate, to be elected by the delegates so returned, 
either from themselves or the people at large, in four great districts, into 
which the United States are to be divided for the purpose of forming this 
senate from, « which, when so formed, is. to be divided into four classes 
for the purpose of an annual rotation of a fourth of the members. A presi- 
dent having only executive powers lor seven years. 

The resemblance between these details and those which we 
have discovered admits of but one explanation. Plainly this 
is the Pinckney plan, completed before May 21, while the 
delegates were still assembling;^ and the description adds 
some useful items to our search. 

Perhaps others can be gleaned from some motions made by 
Pinckney late in July, from his opposition to impeachment 
of the President and his desire for property qualifications for 
Federal officials;^ but here we are treading on less secure 
ground, and certainlj^ some of his motions of this period are 
contrary to his proposals of the first weeks. ^^ Least of all can 
such a course of inference be pursued with regard to the 
numerous proposals which Pinckney made in the last month 
of the Convention. '' 

But wdiat of the pamphlet "Observations?" It has been 
effectively used as a means of reconstructing Pinckney's 
original draft,-^and probably most of the results thus obtained 
are substantial. Yet considerable skepticism is justified. In 
the first place, if one asks what evidence there is that the 

a This device would liave seemed much like that which then prevailed iu the election 
of senators for the New York legislature. 

b "W. S. E. of S. C," in De Bow, XXXIV, 63, says: "This draft was madein Charleston 
before the writer thereof had any opportunity of conference with his co-workers, and 
carried with him to the Convention." 

ejuly 20, 2G. Documentary History, III, 383, 386, 435, 437. 

'(Viz., the proposal of July 21, that the judges should be chosen by the second branch, 
and that of July 25, that the executive should be reeligible only six years in every 
twelve. Documentary History, III, 400, 427. 

e August 18, 20, September 14, 15. Id., 555, 556', 565, 567, 745, 747, 755. 

/By Mr. Paul Ford, Nation, LX, 458. But not always correctly. He gives the House 
of Delegates, instead of the Senate, a four years' term. He places the head of the home 
department among the President's Cabinet officers, though the speech gives the Presi- 
dent himself the special care of that department. He says that the President is given 
no appointing power, whereas he is given power to appoint all officers but the judges 
and the foreign ministers. He mistakenly derives a fugitive-slave provision from that 
concerning fugitives from justice. He says that the power to levy imposts is subject to a 
limitation on the percentage, whereas Pinckney says: "I thought it improper to fix the 
percentage of the imposts, because," etc. Moore, I, 307! 



THE FEDEEAL CONVENTION OF 1787. 121 

speech was ever delivered in the Convention, even in portions 
''at different times'in the course of their discussions" (as the 
title has it), we are obliged to confess that there is none. 
The present writer does not believe that any portion of this 
long oration, save one paragraph," was ever heard in Inde- 
pendence Hall. It is simply incredible that it should have 
been delivered, even in small portions administered from day 
to day, yet have escaped absolutely all notice from either 
Madison, Yates, Pierce, or King. Moreover, in spite of the 
title-page, it can not have been administered in small portions, 
but if given at all must have been given at once, and on May 
29, the very day on which the plan was first read. For in 
the very closing paragraphs we find such language as this: 

In opening the subject, the Hmits of my present observations would only 
permit me to touch the outlines [of my plan]. * * * The first object 
with the Convention must be to determine on principles. The most lead- 
ing of these are * * * In order to bring a system founded on these 
principles to the view of the Convention, I have sketched the one Avhich 
has just been read. I now submit it with deference to their consideration, 
and wish, if it does not appear altogether objectionable, that it may be 
referred to the examination of a committee. * * * i am doubtful 
whether the Convention will, at first, be inclined to proceed as far as I have 
intended; but, etc. 

In other words, this purports to be a speech delivered after 
the plan had been read and before it had been referred; that is 
to say, delivered on May 29. No one can believe that a speech 
of such length and interest was made on that, day yet escaped 
the notice of Madison and Yates.* Madison's words are well 
known: "I was not absent '^a single day, nor more than a cas- 
ual fraction of an hour in any day, so that I could not have 
lost a single speech unless a very short one."^ 

But though the speech may be as imaginary as those of 
Herodotus or Thucydides, its statements as to the plan are 
probably entitled to some credit, especially as we find them 
agreeing with a number of the results which we have derived 
from the debates in the Committee of the Whole and from 
Read's letter. Not many structural details are added to 
those. The term of the Senate is to be four years; but that 
was implied in the plans for rotation. The Executive is to be 

a The next to the last, which appears in another context, in the debate of July 2. 
Documentary History, III, 263; Hunt, III, 343, 344. 
& Pierce had not yet taken his seat, and King's notes do not cover this day. 
cHunt, II, 410, 411. 



122 AMERICAN HISTORICAL ASSOCIATION. 

reclioible. He is provided with a Cabinet. He is to be com- 
mander-in-cliief , and to appoint all officers except the judges 
and the ministers to foreign countries. ^^ He is also stated to 
be removable by impeachment, though Pinckney strongly 
opposed this in the Convention. '' On the other hand, manj^ 
new details, of considerable interest if we can trust them, are 
given concerning the powers to be intrusted to Congress. 
Some of them merely repeat the provisions of the Articles 
of Confederation. Of the rest, the most important are: an 
unqualified right to raise troops; the right to lev}^ taxes upon 
the States in proportion to the white population plus three- 
fifths of the slaves, to regulate trade, to levy imposts, to insti 
tute all necessary ofiices, to erect a Federal court with juris- 
diction over Federal and international cases, and to appoint 
courts of admiralty in the States; an exclusive right to coin 
money and to determine in what species of money the common 
treasury should be supplied; an exclusive right to regulate the 
militia and order its movements; the right to coerce States 
into furnishing their quotas of militia, to admit new States, to 
consent to the division and annexation of small States, and to 
pass a uniform law for naturalization. A two-thirds majority^ 
was to be requisite for those acts which under the Confedera- 
tion had required the assent of nine States in Congress, and 
for acts regulating trade, levying an impost, or raising a rev- 
enue. A less number than thirteen States (nine, it is intimated) 
should sufiice to ratify the new Constitution, or subsequently 
to amend it. ^ 

But next there occur certain miscellaneous provisions that 
are certainl}- without authority. They are described as 
securing — 

the privilege of the writ of habeas corpus, the trial by jury in all cases, 
criminal as well as civil, the freedom of the press, and the prevention of 
religious tests as qualifications to offices of trust or emolument. * !«■ * 
There is also an authority to the national legislature, permanently to fix 
the seat of the General Government, to secure to authors the exclusive 
right to their performances and discoveries, and to establish a federal 
university.'^ 

Of these seven provisions, the last three were introduced 
into the Convention on August 18, in almost identical terms, 

n Moore, T, 3G4. 

'j July 20. Documentary History, III, 383, 3SG. 

c Moore, I, 3()C-3C9, arts. G-10, IC; the rest are not oitcd in the speech l)y numhor. 

rt Moore, I, oG9. 



THE FEDERAL COISTVEWTION OF 1787. 123 

by both Madison and Pinckn(3y, and Piuckney, we are told, in 
a phrase which would hardly be used of features of his origi- 
nal plan, " proposed for consideration several additional pow- 
ers which had occurred to him."'^ Madison, moreover, sub- 
mitted his suggestions "in order to be referred to the Com- 
mittee of Detail."* Now, Pinckney's whole plan had been 
formally referred to that Committee on Julj^ 24:.^ It is incon- 
ceivable that the methodical Madison shoidd have reintroduced 
a portion of it, three or four weeks later, in order that it 
might be referred to the same conmiittee. It is unlikely that 
Pinckney himself would have done so. The same unlikeli- 
hood must be urged against the provisions securing habeas 
corpus and freedom of the press and forbidding religious 
tests; for on August 20 Pinckney "submitted them to the 
House, in order to be referred to the Committee of Detail.'"' 
Concluding that to a considerable extent, and with more or 
less confidence, we can reconstruct the actual plan which 
Pinckney laid l)ef ore the Convention on May 29, we may now 
turn, finally, to the question, If the document which Pinckney 
sent to John Quincy Adams was not his original draft, what 
was it? The question is really not a very difiicult one. The 
similarity of the supposed draft to the final Constitution has 
constantly been noticed. Its resemblance to the report of the 
Committee of Detail is still closer.^ The difierences from the 
latter consist, first, of some omissions or abbreviations of the 
less important passages, as of the tedious rule for deciding 
land disputes between two States; secondly, of some additions 
and alterations, alrnost all of which are recognizable fragments 
of the genuine Pinckney plan, or of Pinckney's later sugges- 

'f Documentary History, III, 554. Both again joincl in moving for the power to estab- 
lish a university, on September 14; id., 745. 

Mbid., 555. 

<■■ Ibid., 423, 443. 

c? Documentary History, III, 5G5. Tlie argument might seem weakened b>' the exist- 
ence of tbo amendments which ensue, p. 5Gfi, regarding the cabinet; but these go into 
much more detail than, probably, was done in the plan. The motion for freedom of the 
press reappears, as made by Pinckney and Gerry, on September 14; Documentary His- 
tory, III, 747. That for trial by jury in civil cases is made by the same two delegates on 
September 15; id., 755. 

(' This closeness of resemblance was noted by Sparks in a letter of November 14, 1831, 
to Madison; H. B. Adams, Jared Sparks, II, 529. The text of the report of the Committee 
of Detail given in the Journal, pp. 215-230, and (from Madison) in Documentary History, 
III 444-458, is apparently more exact than those which are given (from Washington's 
and Brearlcy's copies) in the latter work I, 285-308, 335-358, where, in the attempt to 
represent the original print by large type and the manuscript additions by small letters, 
some errors seem to have crept in. 



VJI AMKKKWN HlsrOKlCAL ASSOCIATION. 

t ions. Such iwv llio poouliar provisions I or tho election of the 
SiMiJite (Articles 1 aiul 10 of the so-ealliHl ])lan); those in Arti- 
c\c () for !i national university, for the estahlishnient of a seat 
o( o-o\(>rnnicnt ami for c^xclusixe jurisiliction of Cong-ress in 
its inuneiliate area, for the propiu-tioniny' of direct taxation 
to tlu> winkle ])opulation of the State (he had inserted the 
three liftlis rule in his plan. l)ut had stated his personal pref- 
erenci^ for reckoniny- in the slaves)." for the prohibition of 
reliuii>us tests, for liberty of the press, and for habeas corpus; 
that in Article 8. for the reeligibility of the President; and 
that in Article 1 1, semirino- to the natit)nal Conoress a negative 
on State hnvs. All the rest does not amount to ten lines, or a 
thirtieth part o( the dticunient. Practically, in other words, 
the s(vcalled Tinckney plan consists of the report of the Com- 
mittee of Detail, as brought in on August 0, minus some of 
it^ lesser features, and plus some of those of his real phm. It 
is not possible to say that Pincknt\v answered Adams's request 
by sitting dmvu and copying the printed report of the Com- 
mittee of Oetail, paraphrasing to a small extent here and 
there, and interweaving as he went along some of the best- 
remembered features of his own plan. Put it is possible to 
declare that if he had done this the result would have been 
precisely like that which in fact he sent on to Washington. 

Moreover, it is an ascertainable faet^ that in Deeember, 
1818, when the document was sent, he had still in his posses- 
vsion his printed copy of the report of the Committee of De- 
tail, as secretly put in type for the use of the members on 
August l>, 1787: for in the letter to Adams which accompanies 
the dnift he says: 

1 c;m as^uiv you ats a fact that for nunv than four months and a hah" out 
of live tlio power of oxoh\!?iYoly making tivaties, appoiuthig foreign minis- 
toi"s and judgt^s of tlie Supreme Court Avas given to the Senate, after numer- 
ou!^ dekUoi! and oonsideRition of the !?nbjeet, both in Connnitttv of tlie 
Whole and in tlie House. This I not only aver, but can pTx>\e by printeil 
document:? in my possession to have been the ease. <" 

Ry what printed document could such a point possibly have 
been proved in 1818. but by the printed report of the Com- 
mittee of Detail i From the nature of the case there Ma^s no 

<« IXxnuneiitary History, III, 824, 

^Sf•lllWc^ That a man inrtv bo trustetl in oasnal anil lunntondtHl imlioations in a letter, 
CYon tho\i^l» in its n>ain puriK»rt it bo lUvoptivo. 
«-llunt, Ul, J:!, 



THE FEDERAL CONVENTIOlSr OF 11S1. 125 

other. It is well known that several members carefully pre- 
served their copies/' It will perhaps be remembered that 
though Madison's final explanation, written down in connec- 
tion with his notes, was that Pinckney's rough draft, marked 
with subsequent erasures and amendments, may have been the 
source of the document he supplied to the Secretary of State, 
his original conjecture, expressed in conversation to Sparks, 
is said to have been that Pinckney "had found a copy of the 
plan reported by the committee, with interlined amendments, 
perhaps proposed by him, and, at a distance of more than 
thirty years, had imagined it was his own plan." If th(i Com- 
mittee of Detail is the conmiittee meant, we may well accept, 
as our final result, the first half of this earliest conjecture. 

But, it may be asked, may not another conclusion be drawn 
from the remarkable similarity observed between the docu- 
ment called the Pinckne}^ draft and the report of the Commit- 
tee of Detail ? Is it certain that this is not due to the fact 
that the f ramers of the latter, who undoubtedly had Pinck- 
ney's plan before them, for it had been formally referred to 
them, based their work upon it, rather than upon the Virginia 
resolutions 'i The process by which one document is proved 
]jy internal evidence to be copied or derived from another is 
often a tedious one to expound or to read. In the present 
case it can be exhibited in an abridged form. We need not 
enter into a minute consideration of each phrase. Substan- 
tially the same results, in almost as convincing a form, can be 
shown by following the labors of the Committee of Detail 
through inspection of the order or succession of articles in 
certain documents. 

There are five documents which show us practically all that 
we know of the work of the Committee of Detail. The first 
is the series of 23 resolutions confided to that (committee on 
July 26, the text of which, gathered from the journals by Sec- 
retary Adams, is to be found in his edition of the Journal and 
in the first volume of Elliot.'^ The second is that document 
in the handwriting of Edmund Kandolph (and John Rutledge), 
members of that committee, which Mr. W. M. Meigs has 

"Bancroft, IT, 119, 139; Ford, Bibliography, p. 3, No. 8. 

'' .lournal, pp. 207-213; Klliot, I, 221-223; Meign, pp. 333-330. A copy of these resolutions, 
in James Wilson's handwriting, evidently put in form for the uses of the committee, ex- 
ists amoiig his papers in the library of the Historical Society of Pennsylvania. 



126 AMERICAN HISTORICAL ASSOCIATION. 

conclusively proved " to be a document prepared b}^ Randolph 
soon after the committee was appointed, to aid its members in 
the task before them — the task of elaborating the 23 resolu- 
tions and filling in details. This document has been printed 
in facsimile by Mr. Meig'S. The third and fourth of the five 
documents alluded to have not hitherto been printed. Their 
manuscripts exist among those papers of James Wilson, an- 
other member of the Committee of Detail, which are possessed 
by the Historical Society of Pennsylvania.^ The former, upon 
comparison with the Randolph manuscript, appears plainlj^ to 
represent a later stage of the committee's deliberations, and 
to l)e the result of an endeavor to work out Randolph's sug- 
gestions and to give formal shape to his details. It is of so 
great interest that, by the kind permission of the ofiicers of 
the society, it is printed in this series. (No. VIII, post.) 
The fourth document difiers but little from the final result of 
the committee's work. It exhibits that work in a still later 
stage. That stage is so near the final one that it has not been 
deemed necessary to print the document ui exteuso, but a full 
statement of the differences between it and our fifth document 
is presented herewith (in No. VIII) inmiedia'tel}'' after the 
third. The fifth is, of course, the report of the Committee of 
Detail, a document often printed.' Like the first, it consists 
of 23 articles, but they are different. Most of them, however, 
are to be found, more or less fully expressed, in the second, 
third, and fourth of the series. 

These five documents, as has been said, enable us to ti-ace 
in outline the histor}' of the conmiittee's work from the time 
of its appointment until, on August 6, it reported to the Con 
vention. Now, without going into details respecting the text 
of the articles contained in them, let us merel}^ consider what 
provisions, speaking generally, the}^ contained, and in what 
order. Though it ma}^ give an abhorrent appearance to the 
page, this can most clearly and succinctly be done by denot- 
ing each provision by the number which it (or its amplified 
equivalent) bears in the articles and sections of the fifth and 
final document, the report of the Committee of Detail. Pur- 

aThe Growth of the Constitution, pp. 317-321. 

''I am groatly indebted to Jlr. John W. .lordan, librarian of tlio society, for favoring 
me wilh oopit'sof llicse two docnniunts. 

f Docmnentary History, HI, 444-458; Journal of 1S19, pp. 215-230; also in Dou. Hist., I, 
285-308, 335-358, and in Elliot, I, 224-230; but see note e, on p. 123, supra. 



THE FEDERAL COlSrVENTIOISr OF 1787. 127 

suing this mode of expression, then, we should say that the 
first document, the resolutions referred to the committee, 
contains the following provisions, in the following order: II, 
III, IV, 1; IV, 2; VI, 9; V, 1; V,'3; V, 2; VI, 9; VI, 12; VII, 1; 

VIII, IV, 3; IV, 1; VII, 3; IV, 5; V, 1; X, VI, 13; XI, 1, 
2, 3; XVII, XVIII, XIX, XX, XXII, V, 1. The second, 
the Randolph document reproduced by Mr. Meigs, contains 
the following: III, IV, 2, 3, 4, 1; VI, 1, 3, 6, 5, 9; IV, 7; 

VI, 8; V, 1, 3, 2 (VI, 3, 6, 5, 9, 8); VII, 1, 4, 5, 6; X, VI, 13; 
XI, XVII, XVIII, XX, XXII, XIX, XXI, XXIII. The 
third document, the first of the two Wilson drafts, runs thus 
if we follow the same system of notation and omit for the 
present from consideration certain extraneous matter which 
is found embedded in the manuscript: I, II, III, IV, 1-4; 

VII, 3; IV, 5-7; V, 1, 2; IX, 1; V, 3; VI, 12; VI, 3; V, 4; 
VI, 4, 1, 2, 6, 8, 5b, 9, 11, 10, 7, 5a (then other matter, of 
which anon); XVII-XX, XXII, XXI,- XXIII, VI, 13; 

IX, 2; IX, 3. The fourth of our documents would be repre- 
sented thus: I-VIII, XII, XIII, IX-XI, XVII, XVIII, 
XIV-XVI, XIX, XX, XXII, XXI, XXIII. 

Not a little instruction might be derived from this record 
of the transmutations which our fundamental document, or 
its germ, underwent during these eleven da3^s at the hands of 
the committee. But our present concern is only with its 
bearings on the problem of the Pinckney plan and specifically 
on the question — the last remaining question, it is submitted — 
whether the report of the Committee of Detail might not 
after all have been modeled on the Pinckney plan rather than 
the latter on the former. We have shown, by a somewhat 
mechanical device, what was the actual genesis of the com- 
mittee's report. Let anyone who is not fatally repelled by 
the notation examine the results with care, and then consider 
the fact that the articles of the so-called Pinckney plan, so 
far as they extend (it has nothing corresponding to Articles 
XXII and XXIII), run in exactly the same order as those of 
the committee's report, and that indeed almost absolutely the 
same order of clauses is preserved within the individual arti- 
cles. Then let any person who has ever attended a committee 
meeting, and who remembers the process by which an impor- 
tant document was ground out, ask himself what the chance 
is that a document which was one of several put into the 



128 AMERICAN HISTORICAL ASSOCIATION. 

hopper on eTuly 26 should, after such permutations as those 
above exhibited, emerge on August 6 as the final result of the 
committee's deliberations, with almost exactly the provisions 
with which it entered, and in almost exactly the same order. 
This, it should be observed, is an argument against the theory 
of wholesale copying from Pinckney. It does not militate 
against the supposition that the committee, having Pinckney's 
plan before them, may have borrowed from it some portions. 



When all of this paper but the last four paragraphs had 
been written, there came to the writer a manuscript contain- 
ing large portions of the original text of the long-lost Pinck- 
ney plan. 

Then felt I like some watcher of the skies 
When a new planet swims into his ken; 

or, more exactly, like one before whose telescope appears an 
asteroid which pursues exactly the orbit that "he had predicted. 
The manuscript alluded to was a copy of James Wilson's rough 
draft, discussed on the preceding pages, and printed in a later 
section (VIII). In the midst of it there was a manifest break 
in text and sense, followed by passages which were readily 
perceived to be excerpts from the Paterson plan. Then came 
a series of propositions which were not less easily identified 
as parts of the much-sought Pinckne}^ plan. Then Wilson's 
rough draft was resumed at a later point than that at which 
it was interrupted. Investigation showed that in the volume 
of Wilson papers possessed by the Historical Society of 
Pennsylvania, from which the copy came, there are four sheets 
of manuscript pertaining to the work of the Committee of 
Detail. The fourth in the order of binding contains those res- 
olutions of the Convention which were turned over to the com- 
mittee at its appointment as the main basis of its work. The 
first and third are the first and third sheets of Wilson's rough 
draft, based on the Randolph paper presented by Mr. Meigs. 
Its second sheet is missing. In its place is sandwiched-in a 
half -sheet containing the excerpts from the New Jersey and 
Pinckne}^ plans already mentioned. A possible reason for 
their being found at this point is that, in the main, the}^ relate 
to what would naturally be the middle portion of Wilson's 



THE FEDERAL CONVENTION OF 1787. 129 

draft. They relate for the most part to the powers of Con- 
gress, of the Executive, and of the Judiciary. These three mat- 
ters had received little elaboration in the Virginia plan or in the 
twenty-three resolutions of July 26. It was natural that Wil- 
son, in essaying the task of amplifying this portion of the 
scheme, should draw off sach passages as were germane to it 
from the other two documents which, it will be remembered, 
had likewise been referred to his committee. At all events, 
this is what appears to have been done. The half -sheet is 
written with a liner pen than the sheets which precede and 
follow (though in Wilson's own hand) and with a different 
spacing. It is distinctly an interpolation, and will not be 
printed with the rest in section No. VIII. It is inserted here. 
First are given the extracts from the Paterson plan. 

An Appeal for the Correction of all Errors both in Law and Fact. 

That the United States in Congress be authorised — to pass Acts for rais- 
ing a Revenue — by levying Duties on all Goods and Merchandise of foreign 
Growth or Manufacture imported into any Part of the United States — by 
Stamps on Paper Vellum or Parchment — and by a Postage on all Letters 
and Packages passing through the general Post-Ofhce, to be apphed to such 
foederal Purposes as they shall deem proper and expedient — to make Rules 
and Regulations for the Collection thereof — to pass Acts for the Regulation 
of Trade and Commerce as well with foreign Nations as with each other. « 

That the Executive direct all military Operations. 

That the Judiciary have Authority to hear and determine all Imjieach- 
ments of foederal Officers; and, by Way of Aj)peal, in all Cases touching 
the Rights of Ambassadors — in all Cases of Capture from an Enemy — in 
all Cases of Piracies and Felonies on the high Seas — in all Cases in which 
Foreigner's may be interested in the Construction of any Treaty, or which 
may arise on any Act for regulating Trade or collecting Revenue. & 

If any State, or any Bodj^ of Men in any State shall oppose or prevent 
the carrying into Execution the Acts or Treaties of the United States; the 
Executive shall be authorised to enforce and compel Obedience by calling 
forth the Powers of the United States. 

That the Rule for Naturalization ought to be same in every State. 

These portions of the New Jersey draft require little expla- 
nation. The first line is a misplaced phrase from the end of 
the second article. The next paragraph is derived from that 
article and contains such important provisions in it as are not 
found in the twenty-three resolutions of July 26, which is 
just what we should expect upon the theory above suggested 

"The margin adds: " to lay and eoDect taxes." 

?'The margin adds: "or on tlie Law of Nations, or general commercial or marine 
Laws..' ' 

H. Doc. 161, pt 1 9 



130 AMERICAN HISTORICAL ASSOCIATION. 

as to the reasons for making these memoranda. Similarh^, 
the next sentence contains the one provision of Paterson's 
fourth proposal which is not in the twenty-three resolutions. 
The next paragraph contains the most essential portions of 
Paterson's Article 5, in so far as these were not contained in 
the other or main document which the committee had before 
it; most of them, however, were in Randolph's plan. The 
provisions for coercion and for naturalization are, for similar 
reasons, copied out of the seventh and tenth of Paterson's 
articles." Then comes in the manuscript a space unusually 
wide, and then, obviously proceeding per saltum to the heg'in- 
ning of a fresh document, we read a longer group of extracts 
from the Pinckney plan.'^ (The italics are not in the original, 
but are used for a purpose which will be explained later.) 

The Legislature shall consist of two distinct Branches — a Senate and a 
House of Delegates, each of which shall have a Negative on the other, and 
shall be sliled the U. S. in Congress assembled. 

Each House shall appoint its own Speaker and other Officers, and settle its 
own Rules of Proceeding; but neither the Senate nor H. D. shall hare the Power 
to adjourn for more than Days, without the Consent of both. 

There shall be a President, in which the Ex. Authority of the U. S. 
shall be vested. It shall be his Duty to inform the Legislature of the Condi- 
tion of U. S. so far as may respect his Department — to recommend Matters to 
their Consideration — to correspond with the Executives of the several States — to 
attend to the Execution of the Laws of the U. S. — to transact Affairs with 
the Officers of Government, civil and military — to exi3edite all such Meas- 
ures as may be resolved on by the Legislature — to inspect the Departments 
of foreign Affairs — War — Treasury— Admiralty — to reside where the Legis- 
lature shall sit — to commission all Officers, and keep the Great Seal of U. S. 
He shall, by Virtue of his Office, be Commander in Chief of the Land Forces of 
U. S. and Admiral of their Navy. He shall have Potver to convene the Legisla- 
ture on extraordinary Occasions— to prorogue them, provided such Proroga- 
tion shall not exceed Days in the space of any . He may 
suspend Officers, civil and military, 

The Legislature of LT. S. shall have the exclusive Power — of raising a 
military Land Force— of equiping a Navy—oi rating and causing public 
Taxes to be levied — of regulating the Trade of the several States as 
well with foreign Nations as with each other — of levying Duties upon 
Imports and Exports — of establishiug Post- Offices and raising a Eevenue 
from them — of regulating Indian Affairs — of coining Money — fixing the 
Standard of Weights and Measures — of determining in what Species -of 
Money the public Treasury shall be supplied. 

a As mimbered in the eleven-article texts; see p. 134, post. 

6 Immediately upon discovering this document, I communicated it to the American 
Historical Review, and it was printed in the section devoted to documents, in the num- 
ber for April, 1903 (VIII. 509-511). 



THE FEDERAL CONVENTION OF 1787. 131 

The foederal judicial Court shall try Officers of the U. S. for all Crimea 
&c. in their Offices. 

The Legislature of IT. S. shall have the exclusive Right of instituting in 
each State a Court of Admiralty for hearing and determining maritime 
Causes. 

The Power of impeaching shall be vested in the H. D. The Senators and 
Judges of the foederal Court, be a Court for trying Impeachments. 

The Legislature of U. S. shall possess the exclusive Right of establishing 
the Government and Discipline of the Militia &c. — and of ordering the 
Militia of any State to any Place within V. S. 

Since the preceding document follows Paterson so nearly 
verbatim, we are warranted in supposing that this, as far as 
it g'oes, is an accurate transcript. But what proves it to be 
Pinckney's plan? First, we have here a body of material 
plainly derived from two documents, and exactly meeting 
certain needs which we know, from the nature of the twenty- 
three resolutions of July 26, the Committee of Detail must 
have felt; one of the two is the second of tKe pieces which had 
been referred to them; it is most likely that the other is the 
third. Secondly, the more numerous house is termed "House 
of Delegates," the name which it bore in Pinckney's plan, 
according to Read's letter and Pinckney's "Observations," 
but in no other of the known projects. Thirdl}^, out of some 
forty provisions given in the text above, not one is in conflict 
with what we otherwise know of Pinckney's real plan, devel- 
oped according to the method established on previous pages. 
It is impossible not to feel that the newly discovered document 
and the preceding investigation confirm each other to a re- 
markable degree; not to be gratified by so signal a corrobora- 
tion, and not to regret that the whole plan can not be found. '^^ 

The discovery of these documents shows that the reference 
of the New Jersey and Pinckney plans to the Committee of 
Detail was not, as has generally been assumed, a mere smoth- 
ering of them. They were used. To what effect they were 
used may be seen by comparing them with some of those five 
papers which, as has been said, exhibit in successive stages 
the work of the Committee of Detail. Paterson's proposals 
for a power to levy duties on imports, to regulate commerce, 
to make uniform the rules for naturalization, to give the 
Executive the power to direct all military operations, and to 

a " W. S. E. of S. C," in De Bow's Review, XXXIV, 63, and n. s. I, 375, says that " Tlie 
original draft, in liis [Pinckney's] own handwriting, with notes and interlineations, was 
preserved among his papers," but implies that it perished in the Charleston Are of 1861. 



132 AMEBIC AN HISTORICAL ASSOCIATION. 

give the Federal coiirthJ jurisdiction over cases relating* to 
ambassadors, and his provisions for the return of fugitives 
from justice, all appear in the report of the Conniiittee of 
Detail; but none of these are to be found in the twcntj^-three 
resolutions, though it must be said that the first two were in 
1787 the commonplaces of constitutional reform. Pinckne3'''s 
plan, among the fovtj provisions (roughly speaking) which 
are preserved to us in the text above, contains no fewer than 
nineteen or twenty that are to be found in the committee's 
report, but were not in the twenty-three resolutions referred 
to them at the beginning of their work, nor in the Virginia 
resolutions, nor in those offered by Paterson. They are 
marked by italics in the text above. Taken together, they 
constitute a noteworthy contribution for the j^oungest dele- 
gate to have made, and show that the labor he spent in draw- 
ing up a plan before the Convention began its work was not 
expended in vain. 

In some cases we can trace the process by which these por- 
tions of Pinckney's scheme found their way into the commit- 
tee's report. Thirteen of them are to be found in Mr. Meigs's 
facsimile of the Randolph draft, which stands second among 
the papers that mark the conunittee's prog'ress. Of these, 
four, it is exceedingly interesting to observe (and also one 
respecting Indian affairs, which did not take effect), stand 
minuted in the margin or interlined in the text by the hand of 
John Rutledge, of South Carolina, colleague of Pinckney and 
representative of their State upon the committee.^* Another, 
though it does not appear in the Randolph draft, is found 
slipping from the margin into the text of Wilson's rough 
draft, the paper next in order of development.^ 

It is perhaps sufficient to remark, in conclusion, that as a 
maker of the Constitution Charles Pinckney evidently deserves 
to stand higher than he has stood of late 3^ears, and that he 
would have a better chance of doing so if in his old age he had 
not claimed so much.^ 

a I refer to the words " to regulate weights and measures," iu the margin of Mr. Meigs's 
Plate V, the words " and equip fleets," interlined in the text nearly opposite, and in the 
margin of Plate VI the phrases ' ' to be commander in chief of the land and naval forces 
of the Union," and "shall propose to the legislature from time to time, by speech or 
message, such matters as concern the Union." 

'' The provision that each house shall appoint its presiding officer. 

'■ Beside his " plan," we owe to his later suggestion the whole or part of Art. I, § 8, els. 
4, 8, 11, 17, § 1), cl. 2, and Art. VI, § 3, cl. 2. 



THE FEDEEAL CONVENTION OF 1787, 133 

VI. THE TEXT OF THE NEW JERSEY PLAN. 

On the 15th of June, according- to the journal of the Con- 
vention/' " Mr. Faterson submitted several resolutions to the 
consideration of the House, which he read in his place, and 
afterwards delivered in at the secretary's table," and which 
have since been famous as the New Jersey or Paterson plan. 
But of this document, or series of resolutions, four different 
texts exist, and it can be declared with confidence that none 
of them precisely represents the original as presented on 
June 15. 

In order to an intellig-ent investigation of these texts, it is 
necessary first to recall what has hitherto been known of the 
genesis of the document. On June 13 the Committee of the 
Whole had practically completed its report, based on the Vir- 
ginia plan. On June 11 — 

Mr. Paterson observed to the Convention that it was the wish of several 
deputations, particularly that of New Jersey, that further time might be 
allowed them to contemplate the plan reported from the Committee of the 
Whole, and to digest one purely federal and contradistinguished from that 
reported plan. '' 

The next day, June 15, he "laid before the Convention the 
plan which he said several of the deputations vyished to be 
substituted in place of that proposed by Mr. Randolph." 
Madison .states its origin thus:'" 

This plan had been concerted among the deputations, or members 
thereof, from Connecticut, New York, New Jersey, Delaware, and perhaps 
Mr. Martin, from Maryland, who made with them a common cause on 
different principles. ■ 

Luther Martin, in his remarks before the Maryland legis- 
lature, definitely claims a share in its preparation, saying: 

We then tliought it necessary to bring forward the projDositions which 
such of us who had disapproved the plan before [submitted?] had pre- 
pared. The members who prepared these resolutions were principally of 
the Connecticut, New York, Jersey, Delaware, and Maryland delega- 
tions. The Hon. Mr. Paterson, of the Jerseys, laid them before the 
Convention. Of these propositions 1 am in possession of a copy, which I 
shall beg leave to read to you.'' 

<i Documentary History, I, 64, 65. 

^-Id., Ill, 123. 

'■Id., HI, 124; Gilpin, 11,862,863; Elliot, V, 191; Hunt, Writings of Madison, III, 165,166. 

''Genuine Information, in Yates' Secret Proceedings, ed. 1821, p. 19; Elliot, I, 349. 



134 AMEEICAN HISTOKICAL ASSOCIATIOK. 

Mr. Bancroft says that the informants of the English Gov- 
ernment named Governor Livingston as the author/' 

Of the five texts which have been stated to be in existence 
it may be proper to take into consideration first that which is 
given by Madison. It is to be found in his notes as printed 
in the Documentary History/' in Gilpin/' in the fifth volume 
of Elliot/'' and in the third volume of Hunt's edition of the 
Writings of James Madison.'' It consists of nine articles. 
The first declares that the Articles of Confederation should 
be made adequate; the second gives Congress additional 
sources of revenue and the right to regulate commerce; the 
third proposes a new plan for the assessment and collection 
of requisitions; the fourth provides a plural Executive; the 
fifth a supreme Federal judiciary; the sixth makes the acts 
and treaties made bj^ Congress the supreme law of the States; 
the seventh requires provision for the admission of new 
States; the eighth for uniform rules of naturalization; the 
ninth relates to the citizen of one State who commits ofl'enses 
in another. This text we will call A. 

Another, which may be called B, is that which is presented 
as an appendix to the official journal of the Convention, in 
the first volume of the Documentary History/ is inserted in 
the text of that record in the Journal of 1819/ and is taken 
from the latter into Elliot''' and Yates. ^ The manuscript from 
which it is copied is declared, in the ,Iournal of 1819,-^ to have 
been derived from Gen. Joseph Bloomfield, executor of David 
Brearley, and the fact that it is one of the Brearle}^ manu- 
scripts also appears in the pages of the Documentary History. 
As Brearley was a member of the New Jersey delegation, the 
paper might seem entitled to considerable authorit}-. Its 
text, however, differs from that which we have called A in 
several particulars. To begin with, it has eleven ai'ticles in- 
stead of nine. Those which do not appear in A are the sixth 

"History of the Formation of the Constitution, II, 40, note 2. See Report on Canadian 
Archives for 1890, p. 101. 
b III, 125-128. 
clI, 863-867. 
d Pp. 191-193. 
e Pp. 166-170. 
/I, 319-323. 
a Pp. 123-127. 

't First ed., IV, 70-72; "second" (third) ed., I, 175-177. 
»Ed. 1821, pp. 221-224. 
iPp. 11, 123. 



THE FEDERAL COiSrVENTION OF 1787. 135 

resolution, providing, as had been provided in the fourteenth 
article of Randolph's plan and in the eighteenth of the report 
of the Committee of the Whole, and in their exact language, 
"that the legislative, executive, and judiciary powers within 
the several States ought to be bound by oath to support the 
Articles of Union;'" and the ninth resolution of B, which de- 
clares ' ' that provision ought to be made for hearing and de- 
ciding upon all disputes arising between the United States and 
an individual State respecting territory." These are not un- 
important provisions. Furthermore, in the fourth resolution, 
relating to the Executive, A provides that they shall be "re- 
movable b}^ Congress on application by a majorit}'^ of the 
executives of the several States," whereas B reads "remova- 
l)le on impeachment and conviction for malpractice or neglect 
of duty by Congress on application by a majority of the execu- 
tives of the several States." This awkward provision wears 
plainly the aspect of an attempt to join, without fusing, two 
independent devices for getting rid of an unacceptable Execu- 
tive. We shall be helped in understanding it if we observe a 
bit of the proceedings in Committee of the Whole on June 2. 
It was moved by one of the Delaware members, Dickinson, 
seconded by another, Bedford, both presumably concerned 
afterwards in concocting the Jersey plan, to add the words 
"to be removable by the National Legislature upon request by 
a majority of the legislatures of the individual States." This 
was voted down, Delaware alone voting in the afBrmative. 
Then the committee proceeded to add the words which, appear 
in the report of the Committee of the Whole: "to be remov- 
able on impeachment and conviction of malpractice or neglect 
of duty."« The former of these two devices reappears, 
slightly modified, in text A of the resolutions prepared by the 
members from Delaware and the other small States. Both 
appear in B. 

In reading the Journal of 1819 Mr. Madison's attention was 
arrested by these discrepancies. In a footnote to his record 
of the debates, inserted immediately after his nine-article text 
of the New Jersey resolves, he says: 

This copy of Mr. Paterson's propositions varies in a few clauses from 
that in the printed journal furnished from the papers of Mr. Brearley, a 



o Documentary History, I, 206, 207; III, 48-51. Madison had himself suggested impeach- 
ment on the preceding day, June 1, in remarks which he does not report, but which are 
given by Pierce, American Historical Review, III, 321. 



186 AMEEICAN HISTOEICAL ASSOCIATION. 

colleague of Mr. Paterson. A confidence is felt, notwithstanding, in its 
accuracy. That the copy in the journal is not entirely correct is shown 
by the ensuing speech of Mr. Wilson (June 16), in which he refers to the 
mode of removing the Executive by impeachment and conviction as a fea- 
ture in the Virginia plan, forming one of its contrasts to that of Mr. Pater- 
son which proposed a removal on the application of a majority of the 
executives of the States. In the copy printed in the journal the two 
modes are combined in the same clause, whether through inadvertence or 
as a contemplated amendment does not appear." 

The remarks of Wilson to which Madison aUudes occur in 
the course of a series of contrasts which Wilson draws be- 
tween the two plans. That the point which Madison makes 
in this footnote is well taken appears not onl}^ from his own 
report of what Wilson said, but from such other reports as 
have come down to us.'^ In his series of parallels, Wilson 
sa3^s that in the Virginia plan the Executive is to be "remov- 
able on impeachment and conviction," in the other to be 
" removable at the instance of a majority of the executives of 
the States." So far, then, the evidence is in favor of text A. 

But the little manuscript book already spoken of as pre- 
served among Judge Paterson's papers contains his own ver- 
sion of his resolutions, and this text agrees in every substantial 
particular with B.^ It contains the two additional articles, 
the sixth and the ninth of B's numbering, and it presents the 
same provisions as are given bj^ B with respect to the removal 
of the Executive. But the manner in which it presents them 
is interesting, and laaj explain the form in which the}^ appear 
in the Brearlej^ version, B. The resolutions are given on the 
right-hand pages of the book. Certain phrases accidentall}^ 
omitted in copjdng are given with asterisks on the left-hand 
pages, other asterisks marking the places of their insertion 
on the right-hand pages. But in this instance of the fourth 
article, we have, without asterisks, on the right-hand page 
the words, " and removeable on Impeachment and Conviction 
for Mal-Practice, or Neglect of Dut}"," and opposite them on 
the left-hand page the words "by Congress on Application 
b}?' a Majorit}^ of the Executives of the several States." Thus 
placed, the two phrases have the appearance of being alter- 

a Documentary History, III, 128; Hunt, III, 170. 

Mbid., Ill, 133; Gilpin, II, 872; Elliot, V, 195; Hunt, III, 176; Yates, p. 126, and Elliot, 
1,414. Paterson's notes in George Bancroft's copies at the Lenox Library, p. 182. 

c Paterson has "subjects" in the seventh resolution, where Brearley has "subjects" 
stricken out and " citizens " written instead. 



THE FEDERAL CON-VENTIOlSr OF 1787. 137 

native proposals, upon which the coterie who framed the res- 
lutions had not come, according to Paterson's subsequent 
memory, to a definite conclusion. It would haA^e been likely 
that this should be the case, if the Delaware members had 
preferred the one form, while the rest had acquiesced in 
that which we see in the report of the Committee of the 
Whole. If in Brearlej^'s cop}^ the alternative gloss had crept 
from the margin into the text which Wilson knew, the form 
which we find in Article 4 of B would be accounted for." 
That the representatives of the smaller States were not dis- 
posed to be rigid about all details of their plan is evidenced by 
Dickinson's remark on June 19, when the discussion of the 
two plans was almost concluded, that he supposed there were 
good regulations in both, and that the committee might do 
well, after comparison, to consolidate such parts of them as 
they might approve.* 

But it would be idle to dispute whether A or B is to be pre- 
ferred, in view of the fact that neither of them can possibly 
be the original text of the resolutions brought in by Paterson 
on June 15. This can be demonstrated from the journal of 
the Committee of the Whole for June 18, when, the New 
Jersey propositions being under discussion, Dickinson inoved 
"to postpone the consideration of the first resolution sub- 
mitted by Mr. Paterson, in order to introduce the following, 
namely,'' oi- (as we may read in words deleted by the secretary 
but still preserved in the manuscript) — 

to substitute the following resolution in the place of the first resolution 
subjnitted by Mr. Paterson, namely, Resolved, That the Articles of Confed- 
eration ought to be revised and amended, so as to render the Government 
of the United States adequate to the exigencies, the preservation, and the 
prosperity of the Union. 

Dickinson's motion was rejected June 19. It was then 
voted "to postpone the consideration of the first proposition 
ofl'ered b}^ Mr. Paterson.'''^ Obviously, then, Paterson's first 
resolution and this declaration proposed by Dickinson were two 
difi'erent things. Yet in both A and B what is set down as 
the first of the Paterson resolutions is almost exactly identical 
with this vote proposed by Dickinson — so nearly the same in 

a I am informed by Mr. Allen, chief of the bureau of rolls and library, that Brearley's 
manuscript runs continuously and without interpolation at this point. 
&Yates, p. 140; Elliot, I, 425. 
e Doeximentary History, I, 224, 225. 



188 AMEBIC AN HISTORICAL ASSOCIATION. 

phraseology that no sensible man, at so important a crisis for 
the smaller States, would have cared to suggest the slight 
alterations. There is, moreover, a significant passage in 
Luther Martin's Genuine Information,** in which he says: 

Nay, so far were the friends of the system [meaning the Virginia plan] 
from pretending that they meant it or considered it as a Federal system, 
that on the question being proposed, " that a union of the States, merely 
Federal, ought to be the sole object of the exercise of the powers vested in 
the convention," it was negatived by a majority of the members. 

No motion expressed in these words is to be found in the 
journal of the Committee of the Whole. Careful search seems 
to show that what he says can have reference to nothing else 
than the rejection, on June 19, of Paterson's first resolution. 
As we have seen, the resolution which stands first in the cur- 
rent texts can not have been the first. The words which Mar- 
tin quotes would be wholly appropriate to an introductory 
article. None but the first of Paterson's propositions, what- 
ever they were, was ever brought to a distinct vote and sepa- 
rately rejected. It is probable, then, that here in these words 
of Martin we have the first of the New Jersey resolutions, 
alluded to but not quoted in the journal. 

But it is now time to invoke the text which we shall call 
C. It is to be found in two periodicals contemporary with 
the days of the Convention — the Maryland Gazette or Balti- 
more Advertiser,^ of February 15, 1788, and Carey's American 
Museum.^ It will be remembered that Luther Martin, one 
of those who took part in drawing up the plan, had a copy of 
it which he read, or at any rate offered to read, to the Mary- 
land assembly when giving them his "genuine information." 
Now, the series in the Maryland Gazette is headed with the 
words: "Resolves proposed to the Convention by the Honor- 
able Mr. Paterson, and mentioned in Mr. Martin's Informa- 
tion to the House of Assembl3^''' It is likel}^ that the printer 
got his copy from Martin. The text in the American Museum 
gives no indication of its provenance. 

But whatever the origin of C, its peculiarities are interest- 
ing. In the first place, it consists of no less than sixteen 

a Yates, p. 42; Elliot, I, 302. 

^Not to bo confounded with the Maryland Gazette published at the same time at 
Annapolis. I am indebted to Mr. Porter Hollis of the Johns Hopkins University for 
kindly copying for mc this text. 

(■ III, 362, 363. 



THE FEDERAL CONVENTION OF 1787. 139 

articles, and the first of these is that identical resolution the 
existence of which we have been led to suspect from Martin's 
reminiscence, and which almost certainly was the one A^oted 
down in committee on June 19. It is expressed -in exactl}^ 
the words quoted by Martin. « Article 2 is Dickinson's sub- 
stitute, which we can be sure was not a part of the original. 
The other articles, with a single exception, correspond to 
those of B, but with a different order and with some subdi- 
vision.* That exception, Article 14, is almost as interesting 
as Article 1. It reads: '''•Resolved, That it is necessary to de- 
fine what offenses committed in any State shall be deemed high 
treason against the United States." Now, not only is this 
interesting on account of its intrinsic importance, but it oc- 
curs, crossed out, in the corresponding position in the series 
written down in Judge Paterson's little book. This may make 
us doubtful whether it was in fact laid before the Convention, 
and so again skeptical as to C's being the genuine original 
text, as submitted on June 15. In the passage on the re- 
moval of the Executive,^ the reading of C is simply, " remov- 
able on impeachment and conviction for malpractice, corrupt 
conduct, and neglect of duty." 

The fourth text, which we may call D, need not long detain 
us. In the appendix to the first volume of the Life and Cor- 
respondence of Rufus King,^^ among some notes which he 
wrote out about 1818-1831, there appears. a series of seven 
articles, briefly summarized, headed, "Quere if Paterson's 
Project." The next words run: "The powers of the Conven- 
tion only authorize the enlargement of the provisions of the 
Confederation, viz." These words point to both the first 
article of C and its second, the first of A and B. The seven 
articles which follow correspond, in the same order, to Arti- 
cles 2-G, 8, and 9 of A. The text is obviously too much abbre- 
viated, too plainly derivative, to have much independent au- 
thority. Its reading as to the removal of the Executive is: 
"removable by Congress on application of a majority of the 
state executives," the reading of A, for which Madison con- 
tended and which Wilson's speech supports. 

a Save "this Convention " where he says "the Convention." , „ , , 

&Art 2=1 of B; Art. 3=2 of B; Arts. 4, 5=3 of B; Arts. 6, 7=4 of B; Arts. 8, 9=7 of B, Art 
10=5 of B- Art U=6 of B, which, it will be remembered, is not in A; Art. 12=9 of B, of 
which the same is true; Art. 13=8 of B; Arts. 15 and 16=10 and 11 of B, respectively. 

c At the end of article 6. 

(i Pp. GOO, 601. 



140 AMERICAN HISTORICAL ASSOCIATION. 

But if we arc oblig-ed to leave in some doubt the question 
of the exact text of the New Jersey resolutions, it may be 
possible for us to cast some light on their g-enesis by the use 
of certain papers preserved by Judge Paterson." Those to 
which allusion is made and which are really significant are 
two in number. Each is written in Paterson's handwriting 
on a single sheet of foolscap. One of these, plainly the 
earlier one, consists of five articles, and mav not improbably, 
for reasons which will appear, be attributed to John Lansing, 
jr., of JMew York, who, we may infer from the remarks of 
Madison and Martin, took part with the members from the 
small States in the preparation of the Jersey plan. Its first 
resolution is that declaration for a union merely federal 
which, as we have seen, stood at the head of the genuine 
Paterson resolutions and was rejected by the Convention. On 
that ver}^ account, perhaps, it is here crossed out. Its second 
article is that which Dickinson, on June 18, moved as a sub- 
stitute for the preceding- and which stands as the first reso- 
lution in A and B and the second in 0. Its third article, 
""that the Federal Government of the United States ought to 
consist of a supreme legislative, executive, and judiciar}-," is 
practically the vote of the Committee of the Whole on May 
30,'' at the beginning of its deliberations, but with the 
important substitution of "Federal" (that shibboleth of the 
particularists) '' for "national." The fourth article is to the 
efl'ect "that the powers of legislation ought to be vested in 
Congress." This no doubt means vested in a Congress organ- 
ized like the present Congress of the Confederation, as distin- 
guished from the l)icameral body proposed b,v the Committee 
of the Whole. This resolution does not appear in the printed 
texts. But on fTuno 1(5 one of the group who prepared the 
New Jersey plan, Ellsworth, proposed "that the legislative 
power of the United States should remain in Congress." 
"This," says Madison, "was not seconded, though it seemed 
better calculated for the purpose than the first proposition of 
Mr. Paterson, in place of which Mr. E. wished to substitute 
it.'''' Again, on June 20, it was moved by Lansing and sec- 



"For tliese 1 am indebted to the kindness of Mr. Noah F. Morrison, of Elizabeth. 
There are copies among the Bancroft MSS., at the Lenox Library. 

'' Documentary History, I, 200. 

<■ Yates, pp. 42, 43. 

('Documentary History, III, ^m■, Hunt, ITT, 179. The motion does not appear in the 
journals. 



THE FEDEEAL CONVENTION OF 1787, 141 

onded by Sherman, two others of the group, to postpone the 
consideration of the second resoUition of the Committee of 
the Whole, in order to take up the following: '•'•Resolved^ 
That the powers of legislation l)e vested in the United States 
in Congress."" Accordingly this provision, though it seems 
to have dropped out from the plan before the final framing, 
was one to which several of the framers were attached, and 
had a natural place in a preliminar}^ sketch. 

The fifth and last article of this incomplete sketch deals with 
additions to the powers of Congress, over and above those 
which the Articles of Confederation had conferred upon it. 
It closely resembles the article on this subject which we find 
in the printed series, and resembles it in such a way as to be 
almost certainh^ its prototype. This can probably not be made 
clear without quoting it. It reads: 

Resolved, That in Addition t(j the Powers vested in the United States 
in Congress by the present existing Articles of Confederation, they he 
authorised to pass Acts for levying a Duty or Duties on all Goods and 
Merchandize of foreign Growth or Manufacture imported into any Part of 
the United States not exceeding per Cent, ad Valorem to be applied to 
such federal Purposes as they shall deem proper and expedient, and to 
make Rules and Regulations for the Collection thereof; and the same from 
Time to Time to alter and amend in such Manner as they shall think 
proper, Provided, That all Punishments, Fines, Forfeitures and Penalties 
to be incurred for contravening such Rules and Regulations shall be 
adjudged and decided upon by the Judiciaries of the State in which any 
Offence contrary to the true Intent and Meaning of such Rules and Regu- 
lations shall be committed or perpetrated; subject nevertheless to an 
Appeal for the Correction of any Errors in rendering Judgment, to the 
Judiciary of the United States. 

That the United States in Congress be also authorised to pass Acts for 
the Regulation of Trade as well with foreign Nations as with each other, 
and for laying such Prohibitions and such Imposts and Duties upon 
Imports as may be necessary for the Purpose; Provided, That the Legis- 
latures of the several States shall not be restrained from laying Embargoes 
in Times of Scarcity; and provided further that such Imposts and Duties 
so far forth as the same shall exceed per Centum ad Valorem on the 
Imports shall accrue to the Use of the State in which the same may be 
collected. 

If all this be compared with Article 2 of A or B, it will be 
plainly seen that it is the original of the latter, or represents 
an earl}^ stage in its elaboration. In the margin stand the 
words "Imposts, Excise, Stamps, Post-Ofiice, Poll Tax," evi- 

n Documentary History, I, 67, 68. 



142 AMKRIOAN HISTOKIOAL ASSOCIATION. 

(liMilh iuimi((Ml MS ,sii<;<4(>s(,i()iis ol' I'lirlhtM' sources o( ('(mUm'siI 
l•ln'^MUu^ to h(^ considoriHl; and (lu> lliiiil dral't, though, as inioht 
l)(> (^x|>(H'I(m1. ill aA'oids llu> oxclso and the poll tax, inserts after 
the mention of r(M(MiU(> hy duties on imports the words "by 
stamps on paper, vellum oi" ])arehment, and by a postai>"e on 
all letters or paekay't^s i)assin^' throui^h th(\iivneral post-olKcc." 
Attontion may bo called to the close relation between these 
projH)sals and the revenue ])ropos;ds ol' ITSI and 178;) and the 
pi-oj(M'( o\' iTSt t'oi" the regulation of conuuerce. In short, we 
have in this docuuuMit a ]\>rschrift for the New Jersey plan, 
draAvn up ])y a man or nuM\ wlu) wen^ willing to go but little 
beyoi\d thosi^ r(\j(M't(Hl and insuUieient schemes. 

Kither no m(U(> was writtiMi of this paper or Paterson copied 
no moie. 'The other pa[)er extends fart hei* and seems to mark 
a lattM- stai^e in llu> process. Its lirst article is that which we 
ultimately lind as the lirst of A and B. Its sei-ond insists 
that the an\tMnlments resolved on l)y the (\)uvention should 
be submittA>d io C^hiotoss and io each State, after the fashion 
prescribed in ArticU> l-iof the (\)nl"ederatii>n. ArticU>s 8 and 
4 are the same as those of the shorter paper. The nuud)ers 
5. (), and T are left with l)laidvs in the text. 'Phis is done to 
sa\i' copying'; for in the maroin, ag'ainst 5, we read, "See 
Ml". Lansing;" against (!, '' See (Jov. Randolph's Tth Prop'n:"" 
apiinst T. "Same. l*th." Now, since in the linislunl document, 
at least accordinu" to texts A and H, we lind at this point a 
r(>solution relatiuii" to the additional ]>owers to be conferred 
on (\>no-ress. then (after that on requisitions) one on the exet-u- 
ti\t> which clostdy reseml)les Randolph's seventh resolution, 
then one on tlu> judiciary, which closely folUnvs his ninth, it 
is m)t illeuitimate to infer that the tifth article of the shorter 
l^aper, whose text we have ipioted and on w hich the article on 
thC' powers of C'onoress in the final dot'ument was plainly 
modeled, is here alluded to as the work of John Lansing, of 
New York. The eighth and ninth articles, assertions of tho 
equality of the States in sovereigiity and independence and of 
their conseipient right to equal representation in the supreme 
legivslature, need not detain us. The part which such asser- 
tions played in the transactions of the Convention is well 
known. The two papers under discussion have their main 
interest as preparatory sketches for the completed New Jersey 
plan, the general nature of which is after all ascertainable, and 



THE fp:dekal convention of 1787. 143 

aw helping to explain its development. It was doul)tless a 
joint product." It may be remembered, by the way, that 
Ellsworth, Paterson, and Luther Martin were fellow-students 
at Princeton and companions in foimding- the Cliosophic 
Society. 

VII. tup: text of Hamilton's plan. 

In any discussion of Hamilton's formal suggestions for the 
proposed Constitution of the United States, it is important to 
keep in mind the distinction between the brief outline which 
he I'ead in connection with his important speech of June 18 
and the longer and more elaborate plan which, near the end of 
the sessions of the Convention, "was placed in Mr. Madison's 
hands for preservation by Colonel Hamilton, who regarded it 
as a permanent evidence of his opinion on the subject."'^ 

Of this longer document Madison returned the original, from 
which it was printed in Hamilton's Works,' and kept a copy, 
from which it was printed by Gilpin'^ and by Elliot,'^andmore 
recently in the Documentary History-^ and in Hunt's Writings 
of James Madison.'^ The text of all these is the same, and not 
at the present day a matter of controversy. One detail, how- 
ever, Avas a hundred years ago a matter of vivid dispute, and 
may deserve a passing notice. It having been alleged "in a 
Jacobin meeting at Salem "^' that Hamilton had proposed that 
the president and senate should be chosen for life, Timothy 
Pickering wrote to him requesting information on the point. 
Hamilton replied in a letter of September 16, 1803, admitting 
that he had proposed a tenure during good behavior for presi- 
dent, senate, and judges, but declaring that his final opinion 
in the Convention had been reversed, so far as the executive 
was concerned. 



a See, also, p. 150, infra; and, for the use iiiiirte of the New Jersey resolntions in the 
Clommittee of Detail, p. 129, mpra. 

& Gilpin, III, xvi. Mr. Lorlgc seems really to suppose the longer document to have 
been laid before the Convention at the same time with the shorter, when he says (Works 
of Hamilton, I, 3-51 n.): "Many of the clauses of the existing Constitution would seem to 
have been taken exactly from Hamilton's draft." 

f' J. C. Hamiltem's edition, II, 395-409. The original is now in the Aslor Lil)rary. 

fUII, xvi-xxviii. 

e V. 584-590. 

/ III, 771-7SH. 

a III, 197-209. Madison had at some time furnished .lefferson with a copy of this paper. 
See his letter of July 17, 1810 (Letters, II, 481), written under the apprehension that he 
had lost his own eojiy. 

'J Pickering to Hamilton, April 5, 1803, 6 Mass. Hist. Soc. Coll., VIII, 179. 



144 AMERICAN HISTORICAL ASSOCIATION. 

In the plan of a constitution, which I drew xip while the Convention 
waH sitting, and which I connnunicated to Mr. INIadison about the close of 
it, perhaps a day or two after, the office of president has no greater dura- 
tion than for three years." 

Madison in one of his letters, in which he is disenssing- the 
disputed numbers of tlie ''Federalist," animadverts upon this 
as a signal instance of the fallibility of Hamilton's memory" ;^ 
for the tenure is during- good l:>ehavior both in the Madison 
cop3' and in that found among Hamilton's papers.' 

But it is the i)riefer sketch read on June 18 which more 
concerns us. It ol)\'ioush' has uiore in common with the pro- 
jects laid before the Convention in its early daj^s by Eandolph, 
Pinckney, and Paterson than has the finished document which 
Hamilton drew up when all discussion was ended. And 3^et 
it stands on a somewhat different basis from these. It was 
never formally proposed to the Convention, and of course 
never referred to a committee; in a sense, it was but a por- 
tion of a speech. Its author, at the time when he read it, 
stated, according to Madison's report, that — 

he did not mean to offer the jiai^er he had sketched as a proposition to the 
committee. It was meant only to give a more correct view of his ideas, and 
to suggest the amendments which he should probably propose to the jilan 
of Mr. R. in the proper stages of its future discussion.'' 

To the same purport Madison sa3^s, in a letter to John 
Quincv Adams: 

Colonel Plamilton did not prcjpose in the Convention any plan of Con- 
stitution. He had sketched an outline which he read as part of a speech, 
observing that he did not mean it, etc. (' 

But though laid before the Convention so informall v, Ham- 
ilton's paper was regarded l)y his colleagues with so much 
interest that we have eight different texts of it from copies 
kept by at least six different members of the Convention. 

(( Niles'.s Register, III, 14S; Piekeriug's Review, pp. 172-173 (120-121 of seconded.); Pitkin, 
II, 259-2G0; Works, ed. Hamilton, VI, 556; J. C. Hamilton, Life of Alexander Hamilton, 

II, 518; id., History of the Repiiblie, III, S44, 315. At p. 313 of the latter is a similar state- 
ment made by Hamilton in print during his lifetime. 

('To James K. Paulding, April, 1831. Letters, IV. 177. So also in Clilpin, III, xvi. 

<■ J. C. Hamilton's note, Republic, III, 315, is singularly inept; he says, regardless of 
what he had printed in Hamilton's Works, II, 401, sec. 9, "the term of three years is in 
the second plan." 

(? Documentary History, III, 149: (lilpin, II. sso, 890: Hunt, HI, 194. 

'■ Letter to .T. Q. Adams, November 2, 1818. ,]. C. Hamilton's History of the Republic, 

III, app. iii: Iliuit, III, 209. J. C. Hamilton labors (ibid., 301 u.) to show that Madison 
contradicted himself on this point, but on the whole without success. 



THE FEDERAL CONVEI^TION OB^ 1787. 145 

Presiimabljr all these were written in the members' own hand- 
writing, according- to the practice described on a previous 
page, at the beginning of our study of the Virginia resolu- 
tions. In most cases we know that this was the fact. These 
texts manifest considerable differences in certain articles. 

First of all (A) we have Hamilton's own text, in eleven 
articles, as printed in his works.* The manuscript from 
which it was printed was found among his papers. Next (B) 
we have Madison's. Madison says that his report of the 
speech, in connection with which this plan was read, was re- 
vised by Hamilton, but his phrase does not necessarily imply 
that this was true of his text of the plan.* The latter is 
printed in Gilpin, « in Elliot,'^ in the third volume of the Docu- 
mentary History,^ and in Hunt's Madison./ Thirdly, there is 
Brearley's copy (C), which General Bloomlield handed over 
to Secretary Adams, with the other papers mentioned on pre- 
vious pages as derived from him, in May, 1818. s' This is 
printed in the Journal of 1819,^* in Elliot,* and in the first 
volume of the Documentary History.-' Fourthly, there is 
Paterson's copy (D), in his handwriting, which is contained in 
the small manuscript book already mentioned in these pages, 
and temporarily lent to the present writer. Fifthly, Read's 
Life of George Read presents a text in nine articles (E), 
"from a copy in Mr. Read's handwriting."'^ It will be re- 
membered that George Read, perhaps alone among the mem- 
bers of the Convention, expressed full approval of Hamilton's 
suggestions.'^ The eleven articles are reduced to nine by the 
omission of the second and the consolidation of the fourth and 
fifth into one. Yates's minutes contain a summary of the 
plan, which, though very brief, is of interest and has an inde- 

. 4. 

« Ed. Hamilton, II, 393-395; ed. Lodge, I, 331-333. 

&Hunt, II, 411, III, 182; Gilpin, II, 892; Trist's memorandum in Randall's Jefferson, 
III, 594. 
c II, 890-892. 
d V, 205. 
cIII, 149-151. 
f III, 194-197. 

a Letter of Adams, iu Hamilton'.s Republic, III, app. p. ii; Journal, p. 130. 
h Pp. 130-132. 
'■ I, 179-180. 
J I, 324-326. 
'-■ Pp. 453, 454. 
I Documentary History, III, 212, 213, 217, 210. 

H. Doc. 461, pt 1 10 



146 AMERICAN HISTORICAL ASSOCIATION. 

pendent origin/' Of the seventh and eighth texts, we may 
postpone our consideration for a few pages. 

Among these six texts there are considerable variations, 
though Paterson's (D) is precisely like Brearley's (C). If 
there were no reasons to the contrary in any case the pre- 
sumption would be in favor of assigning a superior au- 
thority to the copy found in Hamilton's own handwriting. 
But documents are often retouched, and we have seen how 
insecure such reasoning would be in the case of Pinckney or 
even of Paterson. Let us, then, study the variations. Thej'' 
occur in the text of the fourth, seventh, eighth, and ninth of 
Hamilton's eleven proposals. 

In the fourth article, which relates to the executive, the 
variations are in that part which prescribes the (indirect) 
mode of his election. Text A provides for "his election to 
be made by electors chosen by electors chosen by the people 
in the election districts aforesaid," meaning the single-member 
districts arranged for the choice of senators. That is to say, 
it provides not that his election shall be secondary, but that it 
shall be, if the phrase is permissible, a tertiary election. An 
alternative is provided, which appears in no other of the 
texts, namely, "or by electors chosen for that purpose by 
the respective legislatures" — an election still tertiary. The 
Bloomfield and Paterson texts (C, D), though they do not give 
the second member of this alternative, agree exactly with the 
phraseology of the first. In Madison's text the process be- 
comes simpl}?^ that of secondary election — "the election to be 
made by electors chosen by the people in the election districts 
aforesaid." Read's text (E) agrees with this. That of Yates 
seems to support it. He writes, " Let electors be appointed 
in each of the States to elect the Executive;"* but this brief 
phrase does not necessaril}^ rule out the wording of A nor ab- 
solutely sustain that of B. Arguments from one or another 
of these texts derived from expressions used in the subse- 
quent debates seem to be lacking. The longer and more in- 
tricate form in which A provides for the presidential election 
is sustained by the more elaborate -plan which Hamilton 

. « Secret Debates, ed. 1821, pp. 136, 137; Elliot, I, 423, with a difference, to be noted 
below. 

'> Elliot, I, 423, changes the last word to "legislature," which the context shows to be 
erroiieons. It should be remembered that the plan printed in the appendix to Yates is 
simply copied from that in the Journal of 1819, and has no independent authority, 



THE FEDERAL CONVENTIOISr OF 178*7. 147 

showed to Madison in September, for this provided for a ter- 
tiary rather than a secondary election/' and it is easy in copy- 
ing to omit one of two similar phrases when the repetition is 
not perfectly well known to be intentional. On the other 
hand, it is not easy to imagine that the alternative method 
which is suggested in A was really in the document read on 
June 18, yet escaped all notice on the part of all five, or at 
any rate four, of those whose versions have come down to us. 

In the seventh article, relating to the judiciary, the number 
of judges in the Supreme Court is left blank in B, C, D, and 
E, . whereas in A the blank is filled with the word twelve. 
Much the most probable conclusion is that the document origi- 
nally read had a blank at this point, which Hamilton subse- 
quently filled in with the number. In his longer plan he 
provides for a court of from six to twelve judges. 

The eighth article of A reads: 

The Legislature of the United States to have power to institute courts in 
each State for the determination of all causes of caj^ture and of all matters 
relating to their revenue, or in which the citizens of foreign nations are 
concerned. 

In B, in C, in D, and in E (art. 6), we find a less specific 
definition of their jurisdiction: "for the determination of all 
matters of general concern." It would be natural, according 
to the usual rules respecting copying, to suppose that the more 
specific phrase was the original, the more general derivative; 
but this presumption is much weakened when we find four 
independent texts agreeing exactly in their phrasing of this 
provision. 

Finally, in the ninth article, the various texts differ markedly 
in respect to the composition of the court for trying impeach- 
ments. Text A provides that they shall be tried by a court 
consisting "of the judges of the Federal Supreme Court, chief 
or senior judge of the superior court of law of each State." 
The others make no mention of the judges of the Federal 
Supreme Court. Once they were introduced, it is easy to see 
why the blank in Article 7 should be filled with the word 
twelve, lest in impeachments of Federal officers they be quite 
outnumbered by the thirteen chief justices of the States, or so 
many of them as could attend. But B, C, D, and E, while 
they confine the tribunal to the State judges, have minor 

a Documentary History, III, 775-778. 



148 AMERICAN HISTORICAL ASSOCIATION. 

variations in their definition of them. B, in the Documentary 
History, reads, "to consist of the chief or judge of the supe- 
rior court of law of each State;" in Gilpin and in Hunt, "of 
the chief or judge:" E, "chief or judges;" C and 

D, like A, "chief or senior judge." It is not difficult to im- 
agine that, if the writer did not feel perfectly acquainted with 
the judicial systems of all the States, and therefore could not 
in advance of discussion decide what phrase should be used to 
cover the case of States which did not precisely have a chief 
judge, he might at first write "chief or judge," and 

afterward till in the blank with the word " senior." In Ham- 
ilton's longer plan, the court for the trial of impeachments 
in the case of the higher officials is composed of the Supreme 
Court of the United States, (which, it will be remembered, was 
to consist of from six to twelve judges), plus the chief or senior 
judge of each State, any twelve to constitute a court. 

The seventh and eighth texts have been postponed. It is 
no wise certain that they have an independent origin. In the 
first volume of "Porcupine's Works," published by William 
Cobbett in May, 1801, he tells us that "the plan of a Consti- 
tution, which Mr. Hamilton * * * proposed to the Con- 
vention, has since been published by his enemies, with a view 
of destroying his popularity and influence. " " He then reprints 
a text of it, which difi^ers onh^ in two small particulars from 
Madison's (B) — the blank in the seventh article is simply 
closed up, which is doubtless a mere typographical error; and 
in the description of the impeachment court the reading is 
"Chief justice, or judge of the superior court of law," etc. I 
have not been able to discover Cobbett's source. It would have 
some interest, as the earliest printed text of Hamilton's plan, 
or of an}^ of the plans submitted to the Convention, except 
Paterson's. Cobbett's, however, was printed during Hamil- 
ton's lifetime; and so was our eighth text, which is found in a 
pamphlet entitled "Propositions of Colonel Hamilton of New 
York, in the Convention for establishing a Constitutional 
Government for the United States," printed at Pittstield, 
Mass., by Phinehas Allen, in 1803.^ This difi'ers in no respect 
from Porcupine's, save that in the phrase last cited the read- 

a P. 89. 

''There is a copj- in the library of the New York Historical Society. I am greatly 
indebted to Mr. Robert H. Kelby, librarian of that society, for kindly furnishing me a 
transcript. 



THE FEDEKAL CdSrVENTION OF 1787. 149 

ing- is "Chief judge or judge." It is impossible at present to 
say whether either of these, agreeing so closely with Madi- 
son's text, has an}^ other source than his manuscript. 

Whatever the probabilities in any of these individual cases 
of variation, it is perhaps sufficiently shown that in respect to 
Hamilton's suggested plan we have hardly more warrant than 
in the case of the Virginia or New Jersey resolutions or 
Pinckney's plan for declaring with confidence that any one of 
the variant texts represents exactly the original document 
which was brought before the Convention. 

In the late Paul Ford's Bibliography of the Constitution of 
the United States " mention is briefly made, against Hamil- 
ton's name, of a plan of government printed in the Massachu- 
setts Centinel for June 23, 1787. The attribution is erron- 
eous.^ The piece in question bears no signature or other 
indication of authorship. It is entitled simpl}^ "Scetch of a 
Federal Government." It is formed upon principles difl^ering 
widely in several respects from those which Hamilton is 
known at that time to have entertained.^ It provides for a 
legislative assembly consisting of five members from each 
State, chosen annuall}^, and having the power to levy excise 
duties as well as duties on imports and exports; if the amount 
thus raised were insufficient, resort should be had to requi- 
sitions. There was to be an executive council of one member 
from each State, chosen trienniallj^, which should have a veto, 
superable by a two-thirds vote, upon the acts of this assembly. 
Appointments were to be made upon a triple nomination on 
the part of the executive council by a committee of one mem- 
ber of the assembly from each State. A council of revision, 
consisting of the Secretary of Foreign Afl^'airs, the Secretary of 
War, the commissioners of the Treasury, and first judge of 
the admiralty, with appeal to a two-thirds vote of the assem- 
bly, was to exercise in the national interest a control over the 
legislation of the States. The States were to have no power 
to emit money of any kind. 

AH this is interesting, but not highly important; not as 
important, certainly, as (to cite a document of somewhat the 

a P. 48. 

61 wrote to Mr. Ford about this some years ago. He was unable to say with certainty 
from what source he had derived his attribution of the plan to Hamilton. 
t-For a copy of the sketch I am indebted to my father, John Jameson, esq., of Boston. 



150 AMERICAN HISTORICAL ASSOCIATION. 

same class) the body of suggestions found among the papers 
of Roger Sherman, and printed by Jeremiah Evarts in his 
sketch of Sherman in Sanderson's Lives of the Signers.* It 
is, by the way, not at all impossible that this last document, 
to which Mr. Bancroft attaches so high an importance,^ ma}^ 
have been a portion of the Connecticut delegates' contribution 
to those consultations of the members of the small States, out 
of which, as we have already seen, the New Jersey resolutions 
originated. There is nothing in its provisions inconsistent 
with this theory; and the suggestion is fortified by the pres- 
ence of blanks in the declaration, "That the eighth article of 
the confederation ought to be amended agreeably to the 

recommendation of Congress of the day of . " For 

a document prepared at leisure by Sherman it would have 
been easy to hunt down the date, April 18, 1783, and insert it. 
For a paper prepared upon a sudden exigenc}'^ and when he 
was remote from his own books, it might have been necessary 
to leave the date blank. The original of the paper seems to 
be no longer extant. 

VIII. THE WILSON DRAFTS FOR THE COMMITTEE OF DETAIL. 

The original manuscripts of the two papers which follow 
are found among the papers of James Wilson possessed b}^ 
the Historical Society of Pennsjdvania. They are wholly in 
his handwriting. For some consideration of their character, 
and of their relations to the Report of the Committee of Detail, 
see pages 126-130, supra. For copies of them the writer 
is indebted to Mr. John W. Jordan, librarian of the societ3^ 
The first, which in the original has received its present shape 
through many interlineations and other alterations, is here 
printed for the first time, and at full length, so far as pre- 
served. The portion now extant consists of two sheets, evi- 
dently the first and third of three. The second, which must 
have contained statements as to the powers of Congress, the 
organization and powers of the executive and judiciary, is 
missing. In the text which follows, under A, the origin of 
each clause is indicated by references, in square brackets, to 
the clause from which it was derived, directly or with modi- 
oli, 42-44. 6 Formation of the Constitution, II, 37. 



THE FEDEEAL CONVENTION OF 1787. 151 

fications. These references point, when it is possible, to the 
corresponding- passages in the twenty-three resolutions of the 
convention referred to the committee, to the Paterson plan (text 
in eleven articles), and to the Pinckne}^ plan as presented on 
pages 130, 131, supra — the three documents directly referred 
to the committee. In the case of provisions not found in any 
of these three, reference is made (by the word "Randolph" 
and the number of plate and clause in Mr. Meigs's facsimile 
text) to the draft in Randolph's handwriting which shows the 
earlier processes of the committee's work; or to other sources 
when this gives no aid. 

Of the second of Wilson's drafts (B), it has been thought 
sufficient to print a statement of its divergences (which are 
few) from the text of the final report. 



We the People of the States of New Hampshire, Massachusets, Ehode 
Island and Providence Plantations, Connecticut, New- York, New-Jersey, 
Pennsylvania, Delaware, Maryland, Virginia, North -Carolina, South-Car- 
olina and Georgia do ordain declare and establish the following Constitu- 
tion for the Government of ourselves and of our Posterity. [Original.] 



The Stile of this Government shall he the "United People and States of 
America." [Articles of Confederation, I.] 

2. 

The Government shall consist of supreme legislative, executive and judi- 
cial Powers. [Eesollitions, I.] 

3. 

The legislative Power shall be vested in a Congress to consist of two sep- 
arate and distinct Bodies of Men, a House of Representatives, and a Sen- 
ate, each of which shall in all Cases have a Negative on the other. [Res- 
olutions, II, and Pinckney.] 

4. 

The Members of the House of Representatives shall be chosen every 
second year by the People of the several States comprehended within this 
Union. The Qualifications of the Electors shall be prescribed by the Leg- 
islatures of the several States; but their Provisions concerning them may 
at any Time be altered and superseded by the Legislature of the United 
States. [Resolutions, III; Randolph, III, 11.] 

Every Member of the House of Representatives shall be of the Age of 
twenty five Years at least; shall have been a Citizen in the United States 



152 AMERIGAK HISTORICAL ASSOCIATION. 

for at least three Years before his Election, and shall be, at the Time of his 
Election, a Resident of the State, in which he shall be chosen. [Resolu- 
tions, III; Randolph, II, 5.] 

The House of Representatives shall, at its first Formation and until the 
Number of Citizens and Inhabitants shall be taken in the Manner herein- 
after described, consist of 65 Members, of whom three shall be chosen in 
New-Hampshire, eight in Massachussets, &c. [Resolutions, VIII.] 

As the Proportions of Numbers in the different States will alter from 
Time to Time; as some of the States may be hereafter divided; as others 
may be enlarged by Addition of Territory, or two or more States may be 
united; and as new States will be erected within the Limits of the United 
States; the Legislature shall, in each of those Cases, possess Authority to 
regulate the Number of Representatives by the Number of Inhabitants, 
according to the Provisions herein after made. [Resolutions, VIII.] 

Direct Taxation shall always be in Proportion to Representation in the 
House of Representatives. [Resolutions, VIII.] 

The Proportions of direct Taxation shall be regulated by the whole 
Number of white and other Free Citizens and Inhabitants of every &c. 
which Number shall, within six Years after the first Meeting of the Legis- 
lature, and within the Term of every ten Years afterwards, be taken in 
such Manner as the said Legislature shall direct. [Resolutions, IX. ] 

From the first Meeting of the Legislature until the Number of Citizens 
and Inhabitants shall be taken as aforesaid, direct Taxation shall be in 
Proportion to the Number of Representatives chosen in each State. [Res- 
olutions, VIII. ] 

All Bills for raising or appropriating Money and for fixing the Salaries 
of the Officers of Government shall originate in the House of Representa- 
tives, and shall not be altered or amended hy the Senate. No Money 
shall be drawn from the public Treasury but in Pursuance of Appropria- 
tions that shall originate in the House of Representatives. [Resolu- 
tions, X.] 

The House of Representatives shall be the grand Inquest of the Nation; 
and all Impeachments shall be made by them. [Pinckney.] 

Vacancies in the House of Representatives shall be supplied by Writs of 
Election from the Executive Authority of the State in the Representation 
from which they shall happen. [Randolph, III, 17.] 

The House of Representatives shall chuse its own Speaker, and other 
Officers. [Pinckney.] 

The Senate of the United States shall be chosen by the Legislatures of 
the several States; Each Legislature shall chuse two Members. Each 
Member shall have one Vote. [Resolutions, IV, XI, XXII. ] 

The Members of the Senate shall be chosen for six Years; provided that 
immediately after the first Election, they shall be divided by Lot into 
three Classes as nearly as may be, and numbered one, two and three. 
The Seats of the Members of the first Class shall be vacated at the Expi- 
ration of the second Year, of the second Class at the Expiration of the 
fourth Year, of the third Class at the Expiration of the sixth Year, and 
so on continually, that a third Part of the Members of the Senate may be 
chosen every second Year. [Resolutions, IV.] 



THE FEDERAL CONVENTION OF 1787. 153 

The Senate of the United States shall have Power to make Treaties, to 
send Ambassadors, and to appoint the Judges of the Supreme national 
Court. [Randolph, VI, 3.] 

Every Member of the Senate shall be of the Age of thirty Years at 
least, shall have been a Citizen in the United States for at least four Years 
before his Election, and shall be, at the Time of his Election, a Resident 
of the State for which he shall be chosen. [Resolutions, IV; Randolph, 
III, 3.] 

Each House of the Legislature shall possess the Right of originating 
Bills, except in the Cases before mentioned. [Resolutions, A^.] 

In each House a Majority of the Members shall constitute a Quorum to 
do Business; but a smaller Number may adjourn from Day to Day. 
[Randolph, III, 12; IV, 5.] 

The Senate shall chuse its own President and other Officers. [Pinckney. ] 

Each House of the Legislature shall be the Judge of the Elections, 
Returns, and Qualifications of its own Members. [Original.] 

The Times and Places and the Manner of holding the Elections of the 
Members of each House shall be prescribed by the Legislatures of each 
State; but their Provisions concerning them may, at any Time, be altered 
and superseded by the Legislature of the United States. [Randolph, 
II, 8; III, 2.] 

The Legislature of the United States shall have Authority to establish 
such qualifications of the Members of each House with regard to Property 
as to the said Legislature shall seem proper and expedient. [Resolu- 
tions, XXIII. ] 

Each House shall have Authority to determine the Rules of its Proceed- 
ings [Pinckney], and to punish its own Members for disorderly Behaviour. 
[Randolph, III, 13; IV, 7.] 

Each House may expel a Member, but not a second Time for the same 
Offence. [Randolph, III, 13; IV, 7.] 

Neither House shall adjourn for more than three Days without the Con- 
sent of the other; nor with such Consent, to any other Place than that at 
which the two Houses are sitting. But this Regulation shall be applied 
to the Senate only in its legislative Capacity. [Pinckney.] 

The Members of each House shall, in all Cases, except Treason, Felony 
and Breach of the Peace, be privileged from Arrest during their Attend- 
ance at Congress, and in going to and returning from it. [Randolph, III, 
14; IV, 8.] 

The Members of each House shall be ineligible to and incapable of 
holding any Office under the Authority of the United States during the 
Time for which they shall be respectively elected: And the Members of 
the Senate shall be ineligible to and incapable of holding any such office 
for one Year afterwards. [Resolutions, III, IV.] 

The enacting Stile of the Laws of the United States shall be "be it 
enacted and it is hereby enacted by the House of Representatives, and by 
the Senate of the United States in Congress assembled. [Original.] 

The Members of each House shall receive a Conipensation for their ser- 
vices, to be ascertained and paid by the State in which they shall be 
chosen. [Resolutions, III, IV.] 



154 AMERICAN HISTORICAL ASSOCIATION. 

The House of Representatives and the Senate, when it shall be acting in 
a legislative Capacity, shall keep a Journal of its Proceedings, and shall 
from Time to Time publish them: And the Yeas and Nays of the Mem- 
bers of each House on any Question shall at the Desire of any Member, 
be entered on the Journal. [Original.] 

Freedom of speech. « The 

[The first sheet ends at this point; the second, as above 
explained, is missing; the third begins in the midst of a pro- 
vision respecting the admission of new States.] 

mitted on the same Terms with the original States: [Resolutions, XVII, 
or Paterson, 8.] But the Legislature may make Conditions with the 
new States concerning the public Debt which shall be then subsisting. 
[Randolph, VII, 5 b.] 

The United States shall guaranty to each State a Republican Form of 
Government; and shall protect each State against foreign Invasions, and, 
on the Application of its Legislature, against domestic Violence. [Reso- 
lutions, XVIII; Randolph, VIII, 2:4.] 

This Constitution ought to be amended whenever such Amendment 
shall become necessary [Resolutions, XIX]; and on the Application of 
the Legislatures of two thirds of the States in the Union, the Legislature 
of the United States shall call a Convention for that Purpose. [Ran- 
dolph, VIII, 5.] 

The Members of the Legislature, and the executive and judicial Officers 
of the United States and of the several States shall be bound by Oath to 
support this Constitution. [Resolutions, XX; Paterson, 6.] 

Resolved, That the Constitution jsroposed by this Convention to the 
People of the United States for their Approbation be laid before the United 
States in Congress assembled for their Agreement and Recommendation, 
and be afterwards submitted to a Convention chosen in each State under 
the Recommendation of its Legislature, in order to receive the Ratifica- 
tion of each Convention. [Resolutions, XXL] 

Resolved, That the Ratification of the Conventions of States shall 

be sufficient for organizing this Constitution: That each assenting Con- 
vention shall notify its Assent and Ratification to the United States in 
Congress assembled: That the United States in Congress assembled, after 
receiving the Assent and Ratification of the Conventions of States 

shall appoint and publish a Day, as early as may be, and appoint a Place 
for commencing Proceedings under this Constitution: That after such 
Publication or (in Case it shall not be made) after the Expiration of 
Days from the Time when the Ratification of the Convention of the 
State shall have been notified to Congress the Legislatures of the several 
States shall elect Members of the Senate, and direct the Election of Mem- 
bers of the House of Representatives, and shall provide for their Support: 
That the Members of the Legislature shall meet at the Time and Place 
assigned by Congress or (if Congress shall have assigned no Time and 
Place) at such Time and Place as shall have been agreed on by the Majority 

a A marginal memorandum. 



THE FEDERAL CONVENTIOlSr OF 1787. 155 

of the Members elected for each House, and shall as soon as may be after 
their Meeting chuse the President of the United States, and proceed to 
execute this Constitution. [Randolph, VIII, Addenda.] 

Every Bill, which shall have passed the House of Representatives and 
the Senate, shall before it become a Law be presented to the Governour of 
the United States for his Revision; If, upon such Revision, be approve of 
it, he shall signify his Approbation by signing it; But, if, upon such revi- 
sion, it shall appear to him improper for being passed into a Law, he shall 
return it, together with his Objection against it in Writing, to that House 
in which it shall have originated, who shall enter the Objection at large on 
their Journal, and proceed to reconsider the Bill. But if after such Recon- 
sideration, two thirds of that House shall, notwithstanding the Objections 
of the Governour, agree to pass it; it shall together with his Objections, 
be sent to the other House, by which it shall likewise be considered; and, 
if approved by two thirds of the other House also, it shall be a Law. But 
in all such Cases the Votes of both Houses shall be determined by Yeas 
and Nays, and the Names of the Persons voting for or against the Bill shall 
be enlisted in the Journal of each House respectively. If any Bill shall 
not be returned by the Governour within Days after it shall have 

been presented to him, it shall be a Law, unless the Legislature, by their 
Adjournment, prevent its Return; in which Case it shall be returned on 
the first Day of the next Meeting of the Legislature. [Massachusetts Con- 
stitution of 1780, Ch. I,. Sect. I, Art. II.] « 

In all Disputes and Controversies now subsisting, or that may hereafter 
subsist between two or more States, the Senate shall possess the following 
Powers. Whenever the Legislature, or the Executive Authority, or the 
lawful Agent of any State in Controversy with another shall by Memorial 
to the Senate, state the Matter in Question, and ajjply for a Hearing, 
Notice of such Memorial and Application shall be given by Order of the 
Senate to the Legislature or the Executive Authority of the other State in 
Controversy. The Senate shall also assign a Day for the Appearance of 
the Parties by their Agents before that House. The Agents shall be 
directed to appoint by joint Consent Commissioners or Judges to consti- 
tute a Court for hearing and determining the Matter in Question. But if 
the Agents cannot agree, the Senate shall name three Persons out of each 
of the several States, and from the List of such Persons each Party shall 
alternately strike out one until the Number shall be reduced to thirteen; 
and from that Number not less than seven, nor more than nine Names, as 
the Senate shall direct, shall, in their Presence, be drawn out by Lot; and 
the Persons, whose names shall be so drawn, or any five of them, shall be 
Commissioners or Judges to hear and finally determine the Controversy; 
provided a major Part of the Judges, who shall hear the Cause, agree in 
the Determination. If either Party shall neglect to attend at the Day 
assigned, without shewing suflicient Reasons for not attending, or, being 
present, shall refuse to strike, the Senate shall proceed to nominate three 
Persons out of each State, and the Secretary or Clerk of the Senate shall 
strike in Behalf of the Party absent or refusing. If any of the Parties shall 

a A Massachusetts man, Gorham, was a member of the Committee of Detail. 



156 AMEEICAN HISTORICAL ASSOCIATIOTST. 

refuse to sulimit to the Authority of such Court, or shall not appear to 
prosecute or defend their Claim or Cause; the Court shall nevertheless 
proceed to jsronounce Judgment. The Judgment shall be final and con- 
clusive. The Proceedings shall be transmitted to the President of the 
Senate, and shall be lodged among the public Records for the security of 
the Parties concerned. Every Commissioner shall before he sit in Judg- 
ment, take an Oath, to be administered by one of the Judges of the 
Supreme or Superior Court of the State, where the Cause shall be tried, 
"well and truly to hear and determine the Matter in Question, accord- 
ing to the best of his Judgment, without Favour, Affection or Hope of 
Reward." [Articles of Confederation, IX.] « 

All Controversies concerning lands, claimed under different Grants of two 
or more States, whose Jurisdictions, as they respect such Lands, shall have 
been decided or adjusted subsequent to such Grants, shall, on Application 
to the Senate, be finally determined, as near as may be, in the same Man- 
ner as is before prescribed for deciding Controversies between different 
States. [Articles of Confederation, IX.] 

B. 

The later and more finished of Wilson's two drafts differs 
so little from the report of the Committee of Detail that the 
easiest way to give a notion of its contents is to state seriatim 
the alterations which one would have to make in the latter 
document* in order to reproduce, with almost verbal exact- 
ness, the text of the former. The}^ are but eleven in number: 

1. Article HI of the report of the Committee of Detail, 
omit: " The Legislature shall meet on the first Monda}^ in 
December ever}^ year." 

2. Article IV, transpose section 7 and the last half of 
section 6. 

3. Article V, section 1, omit: "Vacancies ma}^ be supplied 
by the Executive until the next meeting of the Legislature." 

4. Article VII, section 1, after the twelfth clause, add: 
"and of Treason against the U. S. or any of them; Not to 
work Corruption of Blood or Forfeit, except during the Life 
of the Party; to regulate the Discipline of the Militia of the 
several States;" 

5. Article VII, section 2, omit (except in so far as it is rep- 
resented by the clauses just mentioned). 

6. Article VII, section 3, omit: " except Indians not paying 
taxes." 

a For a suggestion as to the origin of this provision, see my Essays in the Constitutional 
History of the United States, pp. 44, 45. 
^ As given in the Documentary History, III, 444-458. 



THE FEDERAL CONVENTION OP 1781. 157 

7. After that section add: "From the hrst Meeting of the 
Legislature until the Number of Citizens and Inhabitants 
shall be taken as aforesaid, direct Taxation shall be in Pro- 
portion to the Number of Representatives chosen in each 
State." 

8. Article X, section 2, ad fin., the reading is: "until 
another President of the United States be chosen, or until the 
President impeached or disabled be acquitted or his Disability 
be removed;" and in the preceding clause impeachment is 
mentioned. 

9. After Article X, add: "All Commissions, Patents and 
Writs shall be in the Name of *• the United States of America.'" 

10. Article XI, section 1, omit: "when necessary." 

11. Article XIII, omit: "or make anything but specie a 
tender in payment of debts." The other clauses of Articles 
XII and XIII are present in the Wilson draft, but arranged in 
a different order and placed as one article (No. 10) immedi- 
ately after that which prescribes the supremacj^ of the federal 
law, corresponding to Article VIII of the committee's report. 

IX. MEMBERS WHO DID NOT SIGN. 

Seventy-three delegates were elected to the Convention.'* 
Of these, 18 did not attend. Of the 55 who attended, the 
signatures of only 39 appear at the end of the document. 
Among the 16 whose names are not found there, Elbridge 
Gerry, Luther Martin,'^ George Mason, and Edmund Ran- 
dolph, it is familiar, refused to sign. The object of the pres- 
ent inquiry is to explain the absence of the other 12 names. 
This may not be entirely useless if it is still possible to say, 
as is said in one of the most elaborate accounts of the work of 
the Convention, that they all declined to affix their signatures.^ 
In reality, all 12 were absent when the instrument was signed; 
and there is evidence that 7 approved of it, and no evidence 
that any but 3 of the 12 opposed it. 

a The list which Secretary Adams published in the Journal of 1819, pp. 13-15, contains 
but 65 names. Mr. Paul Ford printed what is presumed to be a complete list (73 names; 
he says 74) in the Collector for September and October, 1888. This was reprinted as a 
separate pamphlet, Brooklyn, 188S; also in Draper's Essay on the Autographic Collections 
of the Signers, pp. 114-117; in Wisconsin Historical Society Collections, X; in Carson's 
History of the Celebration of the Hundredth Anniversary of the Constitution, I, 1.35 ss.; 
and in my Dictionary of United States Hi-story, p. 163. 

l> Martin says that he left Philadelphia on September 4. Letter to the Maryland Jour- 
nal in Ford, Essays onthe Constitution, p. 341. "Landholder" (Ellsworth) says the same, 
ibid., p. 186. 

('Thorpe, Constitutional History of the United States, I, 594. 



158 AMERICAN HISTORICAL ASSOCIATION. 

The 12 members under consideration are Caleb Strong, of 
Massachusetts; Oliver Ellsworth, of Connecticut; Robert 
Yates and John Lansing, of New York; William C. Houston, 
of New Jersey; John Francis Mercer, of Maryland; George 
Wythe and James McClurg, of Virginia; Alexander Martin 
and William R. Davie, of North Carolina; and William Pierce 
and William Houstoun, of Georgia. We will take them up 
in the presumed order of their departure from the Convention. 

Of Chancellor Wj^the, Madison records in his notes under 
date of June tt that he had alread}^ gone home.^' His letter 
of June 16, written from Williamsburg to Governor Randolph, 
shows that the cause of his I'etirement was the dangerous ill- 
ness of his wife.^ A letter of July 16 to Beverley Randolph, 
the acting governor, shows that this cause, "the onl}^ one 
which could have moved me to retire from the Convention," 
continued urgent, and he explained that both these letters were 
intended to express his resignation.^' Mrs. Wythe's illness 
proved fatal.'' His course in the Virginia convention plainly 
evinces his approval of the Constitution. 

Major Pierce left the Convention about July 1. In Madi- 
son's notes and those of Yates we find him speaking on June 
2d J From Jul)^ i to August 1, and from August 27 to Octo- 
ber 1, he was in attendance upon Congress at 'New York. •'' 
Two letters of Hamilton show the latter adjusting a difficulty 
and preventing a duel between Pierce and a Mr. Auldjo, and 
another. New York, July 26, 1787, says: "He informs me that 
he is shorth^ to set out on a jaunt up the North River. " ^ Apart 
from Congressional duty the reasons for his absence do not 
appear. It was not for lack of appreciation of the honor of 
a seat in the Convention. His letter to St. George Tucker, 
written September 28, sa3"s: 

You will probably be surprised at not finding my name affixed to it, and 
will no doubt be desirous of having a reason for it. Know, then, sir, that 
I was absent in New York on a piece of business so necessary that it 

a Documentary History, III, 54; Hunt, III, 81. 

& Calendar of the Emmet Collection, No. 9542. See also Randolph to Beverley Randolph, 
June 21, in Va. Cal. St. P., IV, 298. 

cBrotherhead, Centennial Book of the Signers, p. 257. 

rf Madison, Letters, I, 339. 

e Documentary History, III, 244; Hunt, III, 320; Yates, p. 187; Elliot, I, 464. 

.f Journals of Congress, IV, 750-765, 773-783; memoranda in a manuscript volume of his 
which I have seen. A letter of his to Gardoqui, dated New York, September 3, 1787, is in 
tlie New Jersey Journal for November 28, 1787, and in Carey's American Museum, II, 583. 

(/Works, ed. Hamilton, I, 437, 439; ed. Lodge, VIII, 170, 177, 178. 



THE FEDERAL CONVENTION OP 1787. 159 

became unavoidable. I approve of its principles, and would have signed 
it with all my heart had I been present. « 

Lansing- and Yates left the Convention on or soon after July 
10.^ Elliot says July 5/ But a comparison of the journal of 
the Convention with the sheets of yeas and nays shows New 
York casting- a vote through July 10/^ and there is other 
though not conclusive evidence that Yates was present on 
July 9/ The attitude of these two toward the Constitution is 
well known. 

William C. Houston, of New Jersey, is not known to have 
been present after July 17, if then. He spoke then, if the 
indexer of the third volume of the Documentary History is 
right in attributing certain remarks made that day to him 
rather than to William Houstoun, of Georgia; as to this no 
evidence is known to the present writer.-^ He is not stated to 
have spoken on Siny other occasion. Pierce, in his descrip- 
tions of the members, omits his name.^ Mr. Thorpe, perhaps 
on local New Jersey evidence, says that he withdrew on account 
of illness.'''' 

Doctor McClurg was present on July 20.* But on August 
5 he writes to Madison from Richmond.'' In a later unprinted 
letter to Madison, written on October 31, he discusses the 
Constitution.'^ Kives, probably on the basis of this letter, 
says that McClurg favored it.^ 

William Houstoun, of Georgia, was present till July 24."* 

Davie does not appear in the proceedings after July 26.'* 
On August 6 he writes to Iredell that he shall leave on Mon- 
day, which would mean August 13,'' and on August 23 he 
writes to Governor Caswell from Halifax, N. C, saying that 

a Georgia Gazette, March 20, 1788; American Historical Review, III, 314. 

b Bancroft, II, 75; Martin, in Elliot, I, 358. 

el, 479. 

d Documentary History, I, 86, 250. 

e Appointment of Yates on a committee. Documentary History, I, 84, 299. 

/Documentary History, III, 358; Hunt, III, 455. Madison spells the two names the 
sam.e. 

(/American Historical Review, III, 327. 

/'Constitutional History of the United States, I, 594. 

'■ Documentary History, III, 389. 

J Bulletin of the Bureau of Rolls and Library, 4: 487. 

fclbid. 

/ Life of James Madison, II, 253. 

"I Documentary History, III, 414. Internal evidence shows nearly all the remarks 
which Madison credits to " Mr. Houston " to have been made by a Georgia member. 

» Documentary History, III, 434. 

oMcRee, II, 168. 



160 AMERICAN HISTORICAL AS&OCIATIOlsr. 

he had left Philadelphia on the 13th/' In the North Carolina 
convention he showed his approval of the Constitution. 

Strong" was present on August 15.* That he left Philadel- 
phia before August 25 is apparent from the letter of Gorham 
printed above — No. 4 in Section II. Senator Lodge states 
that he was called home by illness in his family.'' In Parsons's 
notes we find him saying in the Massachusetts convention that 
"through sickness he was obliged to return home, but had he 
been there he should have signed" the Constitution.'^ He 
voted for its ratification. 

Mercer was present from August 6 to August 17/ In the 
Maryland convention he voted against ratification of the 
Constitution. 

Governor Martin, of North Carolina, was in Philadelphia 
as late as August 20, but expected to leave on September 1, 
having to attend the superior court in Salisbury in that 
month.'^ He favored ratification. 

Judge Ellsworth was present in the Convention on August 
23.^ Jeremiah Evarts, in his sketch of the life of Roger 
Sherman, in Sanderson's Lives of the Signers, explains that, 
Sherman and Ellsworth both being judges of the superior 
court of Connecticut, Sherman had to be absent from the 
Convention at its beginning-, Ellsworth at its end.'''^ Ellsworth 
visited President Stiles at New Haven on August 27, on his 
way home.^ That he approved of the Constitution is evident 
from the letter which he and Sherman wrote to the governor 
from New London on September 26,-'' and from his speeches 
in the Connecticut convention.. 

That Dickinson, though his name appears upon the docu- 
ment, was absent on the last day, has been shown in a preced- 
ing portion of these studies (p. 97). 

■I North Carolina State Records, XX, 766. Pitkin says, II, 262, that he has been assured 
that Davie, Strong, and Ellsworth would have signed if they could have stayed to 
the end. 

b Documentary History, III, 535. 

cMass. Hist. Soc. Proc., I, 296. 

d Debates of the Massachusetts Convention, ed. 1856, p. 316. 

e Documentary History, I, 112; III, 444, 555. Mr. Ford (Draper, p. 116) says that Mercer 
left on September 4. 

f North Carolina Records, XX, 763. 

ff Documentary History, III, 602. 

/t Signers, II, 44. 

i Literary Diary of President Stiles, III, 279. 

iCarey's American Museum, II, 434, 435; Elliot, I, 491, 492. 



THE FEDEUAL CONVENTION OE^ 178Y. 161 

X. THE ACTION OF THE STATES. 

The following- paragraphs show, for each State, the dates of 
the sessions of its legislature which intervened between Sep- 
tember 17, 1787, when the Philadelphia Convention adjourned, 
and the date of the ratification of the Constitution by that 
State; also the official or formal materials — journals and de- 
bates — for a knowledge of the proceedings of those sessions. 

New Hampshire. — Four sessions. The "Proceedings of the 
Honorable Senate " and the ' ' Legislative Journals of the House 
of Representatives of the State of New Hampshire" were 
contemporaneously printed at Portsmouth. They have been 
reprinted in Volume XXI of the New Hampshire State Papers. 
The resolution for calling a convention was passed on Decem- 
ber 11, 1787. 

September 12-29, 1787. New Hampshire State Papers, XXI, 89-106 

(S.); 109-143 (H. R.). 
December 5-15, 1787. New Hampshire State Papers, XXI, 145-154 

(S.); 155-169 (H. R.). 
January 23 to February 13, 1788. New Hampshire State Papers, 
. XXI, 171-194 (S.); 195-232 (H. R.). 
June 4-18, 1788. New Hampshire State Papers. XXI, 261-286 

(S.); 287-33! (H. R.). 

MassachiisetU. — One session, the second of the existing leg- 
islature, October 17 to November 21, 1787. Its journals exist 
only in manuscript, in the office of the secretary of the Com- 
monwealth. The legislative proceedings of the General Court 
relative to the new Constitution are, however, printed in the 
Debates and Proceedings of the Convention of 1788, ed. 1856. 
The joint resolution for holding the convention was passed on 
October 25, 1787, and is printed in the Documentary History, 
II, 91-92. 

Rhode Island. — Fifteen sessions, beginning respectively on 
October 29, 1787; February 25, March 31, May 7, June 9, 
October 27, December 29, 1788; March 9, May 6, June 8, 
September 15, October 12, October 28, 1789; January 11 and 
May 5, 1790. Their "Schedules," or "Acts and Resolves," 
resembling a journal in character, were printed contempora- 
neously. Extracts from them, embracing what is most im- 
portant to the present purpose, are printed in the colonial 
records of Rhode Island, X, 262-379. The resolve for hold- 
ing a convention was passed on Januar}^ 17, 1790. 
H. Doc. 461, pt 1 11 



162 AMEBIC ATSr HISTORICAL ASSOCIATIOTT. 

Gomiectlcnt. — One session, October 11 to November 1, 1787, 
of which there are no printed journals. The resolve for hold- 
ing the convention was passed on October 16. 

Nein York. — One session, Januar}^ 1« to March 22, 1788. 
The Journal of the Senate and the Journal of the Assembly 
of the State of New York were contemporaneous!}'^ printed, 
but have not been reprinted. The resolution for holding a 
convention was passed on February 1, 1788. 

Neu} Jersey. — One session, October 23 to November 7, 1787. 
The Journal of the Council, Twelfth Session, First Sitting, and 
the Votes of the Twelfth Assembly, First Sitting, were contem- 
poraneously printed at Trenton. The convention was called 
by virtue of a resolution of October 29, 1787,^ and an act of 
November 1, both of which will be found printed in the Doc- 
umentary History of the Constitution, II, 61, 62. 

Pennsylvania. — Two sessions. Third session of the eleventh 
assembl}", September 1—29, 1787; first session of the tAvelfth 
assembl}', October 22 to November 29, 1787. Their journals — 
e. g.. Minutes of the First Session of the Twelfth General 
Assembl}^ of the Commonwealth of Pennsylvania^— were 
printed contemporaneoush?^ in Philadelphia. For debates, 
see Proceedings and Debates of the General Assembl}^ of 
Pennsylvania, taken in shorthand b}^ Thomas Lloyd, Phila- 
delphia, 1787; Carey's American Museum, II, 362-366; and 
McMaster and Stone, Pennsjdvania and the Federal Constitu- 
tion, pp. 27-72. The resolution for calling a convention was 
passed, b}- well-known means, on September 29, 1787. An 
act for the members'' compensation was passed on Novem- 
ber 10. 

Delaware. — One session, which legally began on October 
20, 1787 (but there was no quorum till October 25), and which 
ended November 10. The Minutes of the Council of the Dela- 
ware State from 1776 to 1792 were printed at Wilmington in 
1888, as No. 6 of the Papers of the Historical Society of Dela- 
ware. The Votes and Proceedings of the House of Assembly 
of the Delaware State were (1787) printed at Wilmington. 
The resolution for calling a convention was passed Novem- 
ber 10. 

(I But tlicre was no qnonim in the Assembly till .Tannary 9, nor in the Senate till Janu- 
ary 11. 

''Bancroft, Constitution, II, 252, says "on the 2Gth ; " ))nt tlie above date is given in tlie 
Doc. Hist., ubi sup., in the Minutes of the Convention and in the New Jersey Journal. 



THE FEDEEAL COlSrVENTION OF 178*7. 163 

Maryland. — One session, November 5« to December 17, 
1787. The journals of the senate and house of delegates were 
printed in 1787. Of the debates, we have the speech of Luther 
Martin, first printed, from the notes of "a customer," in the 
Mar3dand Gazette and Baltimore Advertiser, December 28, 

1787, to February 8, 1788; then in the State Gazette of South 
Carolina, and probably in other newspapers; then as a pamph- 
let. The Genuine Information delivered to the Legislature of 
the State of Mar^dand, relative to the Proceedings of the Gen- 
eral Convention lately held at Philadelphia, b}^ Luther Martin, 
Philadelphia, 1788 (Ford, 119); reprinted in Yates, Secret 
Proceedings, Albany, 1821, Washington, 1836, and the other 
editions; and in Elliot's Debates, first ed.. Vol. IV; third ed., 
Vol. I. The vote for calling a convention passed the house 
on November 27, the senate on December 1. 

Virginia. — One session, October 15, 1787, to January 8, 

1788. The journals of the senate and house of delegates were 
printed contemporaneously, and also in 1828, at Richmond. 
The debate of October 25 is reported in Miss Rowland's George 
Mason, II, 190-191, from the Pennsylvania Packet of Novem- 
ber 10. A resolution for calling a convention was passed by 
the house on October 25, 1787, amended by the senate, and 
finally passed on October 31. An act respecting the conven- 
tion was passed on December 12. Hening, XII, 462. 

North Carolina. — Three sessions. The journals of the sen- 
ate and house of commons are to be found either in Vol. XX 
of the State Records of North Carolina or in contemporary 
print. 

November 19-December 22, 1787. Journals (S., H. C.) in N. C. 

Kec, XX. 
November 3-December o, 1788. Journals (S.) N. C. Rec, XX; 

(H. C.) Edenton, 1788. 
November 2-22, 1789. Journals (S., H. C), Edenton, 1789. 

The first convention was called by virtue of a resolution of 
December 6, 1787; the second, by one of November 17, 1788. 

South Carolina. — One session, January 8 to February 29, 
1788. The journals remain in manuscript in the office of the 
secretary of state at Columbia. Of the debates, we have: 
Debates which arose in the House of Representatives of South 
Carolina on the Constitution framed for the United States by 

(I There was no quorum in the house till November 14, nor in the senate till Novem- 
ber 22. 



164 AMERICAN HISTORICAL ASSOCIATION. 

a Convention of Delegates assembled at Philadelphia; Charles- 
ton, collected by R. Has well and published at the Cit}' Gazette 
Printing Office, No. 47 Bay, 1788 (Ford 152). This pamphlet 
was reprinted with additions in 1831 (Ford 153), and in the 
third ("second") edition of Elliot's Debates, IV, 253-317. 
The resolution for calling the convention was passed on Janu- 
ary 19, 1788; the ordinance giving the members the usual 
privileges, etc. , on February 29. 

Georgia. — One session, July 3 to October 31, 1787. Another 
began on Januar}^ 1, 1788, the day before ratification. The 
journals are in manuscript in the office of the secretary of state. 
The resolution for calling the convention was passed on Octo- 
ber 26, 1787, and is printed in Documentary History, II, 83. 

XI. JOURNALS AND DEBATES OF THE STATE CONVENTIONS. 

The formal or official journal has not in all cases been 
printed, but the volumes of debates usuall}^ contain, as inci- 
dental to their main purpose, much of the material appropri- 
ate to a journal. In the case of the rarer publications I have 
referred by number to Mr. Ford's Bibliography, where fuller 
titles, and sometimes notes, may be found. 

NEW HAMPSHIRE. 

/ournai.— Historical Magazine, XIII, 257-263. 

New Hampshire State Papers, X, 1-22. 
Defeases.— (Fragments.) Elliot, Debates, third ed., II, 203-204. 

Thomas C. Amory, The Military Services and Public life of 

Maj. Gen. John Sullivan, pp. 230-231. 
Joseph B. Walker, History of the New Hampshire Convention, 
pp. 112-116. 

MASSACHUSETTS. 

Journal. — In Debates, ed. 1856. 

Debates. — Debates, Resolutions, and other Proceedings of the Convention 
of the Commonwealth of Massachusetts, Boston, 1788. (Ford, 
122.) 

American Museum, III, 343-362. 

Debates, Resolutions, and other Proceedings, Boston, 1808. 
(Ford, 123.) 

Elliot, Debates, first ed., I, 25-184. 

Elliot, Debates, third ed., II, 1-202. 

Debates and Proceedings in the Convention of the Common- 
wealth of Massachusetts, Boston, 1856. (Contains the mate- 
rial which was in the editions of 1788 and 1808, and also the 
official journal and the notes of Theophilus Parsons.) 

Notes of Jeremy Belknap, in Mass. Hist. Soc. Proc, III, 296-304. 



THE FEDBEAL CONVENTION OF 1787. 165 



RHODE ISLAND. 

Journal. — W. R. Staples, Rhode Island in the Continental Congress, pp. 
640-674. (Contains also some notes of the debates; see ex^ 
planation on ji. 644. ) 

CONNECTICUT. 

Debates. — (Fragments. ) American Museum, III, 334-343 (Ellsworth) ; IV, 
167-170. 
Elliot, Debates, third ed., II, 185-202. 

G. H. HoUister, History of Connecticut, II, 456-460 (Ellsworth) . 
Frank Moore, American Eloquence, I, 404-409 (Ellsworth) 

NEW YORK. 

Journal. — Journal of the Convention of the State of New York, Pough- 

keepsie, 1788. (Ford, 130.) 
Debates. — The Debates and Proceedings of the Convention of the State of 

New York, New York, 1788. (Ford, 129.) 
American Museum, IV, 172-173 (G. Livingston). 
Elliot, Debates, first ed., I, 185-358; III, l*-8* (the last a speech 

by Tredwell, never delivered). 
Elliot, Debates, third ed., II, 205-413. 

Hammond, History of Political Parties, I, 26-28 (G. Livingston). 
Hamilton, Works, ed., J. C. Hamilton, II, 426-463 (Hamilton). 
Moore, American Eloquence, I, 187-204 (Hamilton). 
Johnston, American Orations, I, 39-52 (Hamilton). 

NEW JERSEY. 

Journal. — Minutes of the Convention of the State of New Jersey, Trenton, 
1788. (Ford, 127; reprinted at Trenton in 1888 by C. -L. 
Traver. ) 

PENNSYLVANIA.' 

Journal. — Minutes of the Convention of the Commonwealth of Pennsyl- 
vania, Philadelphia, 1787. (Ford, 141.) 
Debates. — The Substance of a Speech delivered by James Wilson, esq., 
Philadelphia, 1787. (Ford, 168.) 

Debates of the Convention of the State of Pennsylvania, 
* * * taken accurately in shorthand by Thomas Lloyd, 
Philadelphia, 1788 (McKean, Wilson). (Ford, 140.) 

Elliot, Debates, first ed., Ill, 221-322. 

Elliot, Debates, third ed., II, 415-542. 

Moore, American Eloquence, I, 74-82 (Wilson). 

McMaster and Stone, Pennsylvania and the Federal Constitu- 
tion, pp. 211-431 and (Wilson's notes) 765-785. 

DELAWARE. 

[Neither journal nor debates has, I believe, ever been published. ] 



166 AMERICAN HI9T0EICAL ASSOOIATION. 

MAKYLAND. 

Journal. — Documentary History of the Constitution, II, 97-122. 

VIRGINIA. 

Journal.- — Journal of the Convention of Virginia, Richmond, 1827. (Ford, 

159). 
Debates. — Debates and other Proceedings of the Convention of Virginia, 
Petersburg, 1788, 1789, three volumes. (Ford, 157.) The 
notes for these volumes were taken in shorthand by David 
Robertson, of Petersburg. A note on the last page of this 
original edition, III, 228, tells us that ' ' The Gentleman who 
took the foregoing Debates in Short-Hand, having had but 
an ineligible seat in the Gallery, a situation remote from the 
speakers, where he was frequently interrupted by the noise 
made by those who were constantly going out and coming in, 
is conscious that he must have lost some of the most beauti- 
ful periods and best observations of the different speakers; 
and is afraid that in some instances he may have misappre- 
hended their meaning. * * * He further begs leave to 
add, that his having taken the Debates of the Convention of 
North Carolina, and the pressure of his other avocations dis- 
abled him from furnishing the Printers with so fair a copy 
as he would otherwise have done. He was only able to 
give him a rough transcription from the Short-Hand origi- 
nal," and could not read the proofs. Rives, II, 586, says that 
Madison's speeches were not revised by him and that he 
presumes none of the others were revised by their authors, 
unless Monroe's first speech. 

Debates and other Proceedings of the Convention of Virginia, 
Richmond, 1805. For this second edition Robertson corrected 
his text and compared it in part with the original shorthand 
notes. 

Elliot, Debates, first ed.. Vol. II; third ed.. Vol. III. (From 
the above. ) When Elliot was preparing his first edition he 
offered Madison the chance to revise his speeches as given by 
Robertson; but Madison did not think it fair to the others 
when forty years had elapsed. See his letter of November, 
1827. Letters, III, 598. 

Moore, American Eloquence, I, 13-39 (Henry), 127-144 (Madi- 
son), 165-173 (Randolph), II, 10-20 (Marshall). 

Johnston, American Orations, I, 53-71 (Madison). 

NORTH CAROLINA. 

Journals. — (First convention.) Journal of the Convention of North Caro- 
lina, Hillsborough, 1788. 
(Second convention. ) Journal of the Convention of the State 
of North Carolina, Edenton [1789]. (Ford, 135; reprinted in 
the State Chronicle of Raleigh, November 15, 1889. ) 



THE FEDERAL CONVENTION OF 1787. 167 

Debates.— {First convention. ) Proceedings and Debates of tlie Convention 
of North Carolina, Edenton, 1789. (Ford, 137.) "A Mr. 
Robinson [Robertson] attended the convention as stenogra- 
pher. The Federalists were desirous that the debates should 
be published. * * * At their instance Iredell and Davie 
assumed the responsibility and care of the publication. Neat 
copies were made in Edenton by Mr. Lorimer (an English- 
man) from the notes of the reporter; and as far as practicable 
the speeches were submitted to their authors for correction. 
This enterprise involved Iredell and Davie in some pecuniary 
loss. ^ * * The debates were printed at Edenton by Hodge 
and Wills, and made their appearance about the last of June, 
1789. One thousand copies were published." McRee, Life 
of Iredell, II, 235. 

Elliot, Debates, first ed.. Ill, 17-220. 

Elliot, Debates, third ed., IV, 1-252. 

(Second convention. ) Fragments in news]3apers, according to 
Mr. Ford. 

SOUTH CAROLINA. 

Debates. ^State Gazette, of South Carolina, May, 1788. (Pinckney's speech 

at the opening, May 14. ) 
American Museum, IV, 170-172 (two speeches), 256-263 

(Charles Pinckney's speech of May 14). 
Debates which arose in the House of Representatives [as above, 

pp. 163, 164]. Together with such notices of the Convention 

as could be procured. Charleston, A. E. Miller, 1831. 
Elliot, Debates, third ed., IV., 318-341. 



[IliTothing of either journal or debates is known to have been printed, 
unless in some contemporary newspaper outside the State; the Georgia 
newspapers seem to have nothing of the sort. ] 



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